As to this Case I would observe first this is not a Case upon a Power of Revocation to devest an Estate nor a Performance of a Condition But further here are Instructions prepared and it went as far towards the Execution of the Power as could be till an Impediment came in the way by the Act of God in the Death of the Party Now I agree where there is an Impediment by the Act of God or Fraud or Default of the Party who claims by the Deed Equity may interpose But that doth no way come up to the Case in Question Then there is the Case of Dey and Thwaites which was lately in this Court Thwaites makes a Settlement to the use of himself for Life and afterwards to such Child and Children and for such Estate and Estates as he should by any Writing under his Hand and Seal testified by two credible Witnesses limit and appoint He afterwards makes a Will and has but two Witnesses to it so that they did not cite the Case right that said there were not two Witnesses but two Witnesses are not enough by the Statute to make it a good Will and thereby he giveth a Rent of 100 l. a Year to such a Child and dies Now one great Question was Whether the Power being to limit Estate or Estates he might limit a Rent out of those Lands It was held in Equity he might and truly I think that he might at Law There is I confess an Opinion against it in the Case of Brown and Taylor where there were three Judges against one But really I think it is good at Law A second Question was Whether this being void as a Will by the Statute should be yet a good Declaration of the Trust and an Execution of the Power And I think the Court of Equity did very well in decreeing it to be Good For tho it were not effectual in all Points as it was intended as a Will yet it was a Writing which had all the Circumstances required by the Power and therefore I see no reason to question whether it were Good The next Case is the Case of Ward and Booth and that stands thus Sir Thomas Brereton made a Settlement with a Power of Revocation by a Writing under Hand and Seal before two Witnesses and he in a Passion one day tore off the Label with the Seal but afterwards repented Delivered it to the Trustees to be preserved to the Uses And enquiring whether what he had done amounted to a Revocation and being advised it did not he was very well satisfied This Cause came to be heard before my Lord Nottingham and adjudged no Revocation it appearing there was a continued Intention not to revoke But I desire to read part of the Ground that Decrce went upon for that justifies what I said in case where there is a Disability or an Impediment by Fraud this Court may relieve though there be a formal Revocation There is but one Precedent more that I shall mention and that I take to be directly for the Earl of Bath It is the Case of Arundell and Philpott Mary Philpott being a Widow seized of Lands made a Settlement upon the Defendant with a Power of Revocation upon the tender of a Guiney She afterwards makes another Settlement upon the Plaintiff but without any proof of the tender of the Guiney Upon a Bill suggesting her Intention to revoke the Plaintiff could not prevail in this Court to set aside the first Settlement but was dismist to Law and ordered to try the Title within a Twelve-month whether Revoked or not Revoked And there were afterwards a Trial and the Tender of the Guiney did happen to be proved and so the Power was well executed at Law But this Court would not interpose to set it aside as a Revocation in Equity upon the Intention only without a proof of the due Execution And upon the whole Matter I conclude that in a Court of Equity there cannot be a Revocation of a Deed to which a Power to revoke is annex'd but what is pursuant to that Power unless there be either an Impediment from the Party that claims by the Deed or a real disability to execute according to the Circumstances And I think neither of these are in this Case nor are any of those Matters alledged of Surprize Circumvention Concealment or the like any good grounds to set aside this Deed if they were proved which I think there is no pretence of Lord Chief Justice TREBY I Am of the same Opinion with my Brother Powell I shall state the Case as it stands upon this Deed and Will The Will was made in 1675 the Deed in 1681 and shall take notice as I find there was much use made of it on one side of what the Expressions are in the Will and somewhat of what Deficiencies there were of Expression in this Deed. In 1675 the Duke of Albemarle made his Will and by that Will he declares That in respect of my Lord of Bath's being one of his nearest Kindred and out of Gratitude due to him for many Acts of Friendship and good Offices done to him and his Family his Will was that he should inherit all the Parts of his Real Estate not therein otherwise disposed of and therein he desires the King to grant to the Earl of Bath and the Issue Male of his Body the Title of Duke of Albemarle and that his eldest Son might bear the Title of Lord Monk And this was intended in Trust to pay all his Debts and certain Legacies in the Will He therein gives a Legacy of 1000 l. to Henry Monk not the Father of the Plaintiffs the Monks who it doth not appear was any ways related to him Six Years after in 1681 this Duke Christopher makes a Deed and in that Deed recites this Will true as to the Date but mistakes it in several Particulars This Deed settles the main part of the Estate after the Duke and Dutchess their death without Issue by the Duke upon my Lord of Bath part of it immemiately after his own death without Issue other parts upon Sir Walter Clarges and Mr. Greenville And it has been observed that almost all the Limitations of the Estates in the Deed differ from those in the Will at least in express Terms if not in very Substance This Deed also sets forth the Grounds why the Duke made it and it is to this Effect He doth declare he was so unfortunate that his next Heir at Law was descended from a Regicide and therefore I would observe it was not only to confirm the Will as they would have it but for preventing so dishonourable a Descent of the Estate which he owed to the Bounty of the Crown and for conveying and settling and assuring the Lands to the Uses thereinafter declared and confirming and corroborating that Will which he did not intend to revoke and to prevent any Claim either by the Heir or any pretended surreptitious Will which
of any previous Direction for drawing of this Deed there is no Proof of the Draught or Deed 's being read to the Duke no Counterpart was executed The Trustees were not acquainted with it there was an Estate limited to Sir Thomas Clarges when there were great differences between the Duke and him it is not subscribed by the Duke's Counsel as all Deeds executed by him used to be that it was ingrossed according to the Draught and that in a very material place for if it had been according to the Draught the Duke had been Master of the Estate by a general Trust and if it were not perused by Sir William Jones or he was not a Witness to it then so far as Sir William Jones was surprized in the matter the Duke was so too Now as to the want of Proof of any previous Directions for this Deed that is not strange after such a length of time Sir Thomas Stringer who drew it dead four of the Witnesses to the Execution of it are dead too But the presumption is very strong when the Draught is of Sir Thomas Stringer's Son's Hand-writing and corrected and interlined by his own hand in several places that he had Orders and Directions from the Duke to prepare such a Deed. The Reading or not Reading the Deed to the Duke doth not appear it might be read to him before and it was not necessary it should be read to him at the time of the Executing if it were then the Will of 87 lies open to the same Objection for that was not read to the Duke when he sealed it As to that Objection that there was no Counterpart nor the Trustees acquainted with it that can be nothing of an Objection for the Deed remained in the Duke's hands till a little time before his going to Jamaica as appears by my Lord of Bath's Answer which hath not been falsified as I know of in any point nor was there any Occasion to give Notice to the Trustees becauâ—e thâ—re was no manner of Estate or Trust lodged in them But my Lord of Bath was the only Person that had any Trust in him by the Deed therefore there was no Reason that it should be known to any one but him And the Nature of the thing and all the Proofs shew that it was intended to be concealed Then as to the Story of Sir Tho. Clarges and the Differences between the Duke and him there is no Proof of it It is at most but an Hear-say testified by one Witness That it was not Subscribed by the Duke's Counsel as all his Deeds usually were it seems to me to be of no very great Weight when the Draught appears under Sir Thomas Stringer's Son's Hand interlined and corrected by himself and Sir William Jones a Witness to the Execution and present when it was compleated Sure that can never signifie any thing As to the other Observation that was made that the Deed was not Ingrost according to the Draught and the Variation is in so Material a part as to make the Duke Master or not Master of the Estate it should be considered First That upon view of the Draught it is plain Words have been cut off and there is a positive Witness who swears That he twice Ingrost the Deed by the Draught It is possible that a Man may twice leave out the same Words in Ingrossing a Deed by a Draught But that he should twice add the same Words that were not in the Draught is very strange and not easily to be believed Then say they This is not the Draught that was first perased and approved of by Sir William Jones That is certainly such an Objection as never was made before and indeed it is likely there never was Occasion to make such an Objection till the last Hearing for it may be it was not cut till then But pray let it be considered for whose Interest it was to have this Draught cut or altered from the Ingrossment It is impossible it should be cut off for the Interest of my Lord of Bath by the Objection that ariseth from it for let any Words in Nature have been there they could not have been of such Disadvantage as they would have it to be However be the alteration of the Draught what it will if it were not done by the Defendants nor was for their Interest to be done nor done before the Execution of the Deed it all signifieth nothing But I think it is fit and proper here to say something to that Notion that where the Counsel is surprized that is a surprize upon the Client I take that to be a matter of a very great Consequence and I fear it would shake most of the Settlements of Estates in England and for that I would mention the Case of Sir James Herbert and the late Lord of Pembroke There was a Bill brought in this Court to set aside the Will of the Elder Brother who was the late Earl of Pembroke but two Sir James was Heir at Law and the other was but half Brother That Earl had taken a Displeasure at his Brother and sent Directions to Mr. Swanton to draw a Will and Settlement of his Estate and amongst other things orders to be sure that the Brother should have no power over the Estate to dispose of it because that in his Grandfather's Will there was such a Settlement as he liked of he sends him that Swanton makes a Will and limits an Estate to Sir Philip Herbert the Brother for life and the remainder to the Heirs of his Body This Will is brought by the Counsel to the Earl and read and Executed and held to be Good yet this was a Notorious Surprize upon the Counsel for nothing is plainer than that the Counsel had made a Mistake or knew not the Law He did not at best consider that upon such a Limitation the Law uses the whole Estate Tale in him and he may dispose of it It is plain he had not pursued the Will of the Grandfather but yet when this Cause came to be heard before my Lord North when the Will appeared to have been truly executed the Court declared it was a Misfortune that they did not go to a better Counsel And it was sent to Law to try whether it was the Will of the Earl of Pembroke or no and it being found to be the Earl's Will the Bill was dismist with Costs Thus I have taken Notice of what has been offered to prove the Surprize I would shortly mention on the other side what hath been insisted upon to shew that there was nothing like Surprize but all was done upon a very good ground and pursuant to a setled full purpose continued for so long a tract of time to the Duke's death First Say they It doth appear there were a very near Relation between my Lord Duke and my Lord of Bath and that Duke George owned and owed his first setting out in the world to the Ancestors
of my Lord of Bath It doth plainly appear there was a most particular Friendship and mutual Confidence between them in Matters of the Highest Nature and Chiefest Concern Nay that this proceeded so far on my Lord of Bath's side in Duke George's time that he prevailed with King Charles the II. to promise under the Sign Manual and recommend it to his Successors to Create my Lord of Bath Duke of Albemarle if here were a failure of Issue by the Duke Then that this Friendship did continue between Duke Christopher and my Lord of Bath is plain beyond all Controversy for it began upon a very good Foundation That is Whereas the Garter should have been given to the Earl of Bath he prevailed to have it returned to the Young Duke and it continued so much all along that there was nothing of Moment relating to the Duke's Affairs in which the Earl was not mainly concerned And all this is proved by a Series of Letters continuing down from the Death of Duke George to the Death of Duke Christopher In 74 he sends him Word he had pursued his Advice and his Advice should always be very prevalent with him In 75 he tells him he expected to see him with great Impatience because he was not able to go on in the Regulation of his Family without his Assistance and Advice that he had finished his Will and would make all more Perfect when he came to him It should seem his former Will was trusted in my Lord's Hands and when that was returned or brought up in a few Days after this Will of 75 is made and by that all the Estate or the main of it is given to my Lord of Bath and it was the first Will I think that he made after he came of Age and had any Power to dispose of his Estate in Land and thereby as I said he Deviseth the bulk of it to my Lord of Bath He always desired as the Will declares That in case he had no Issue the Earl might succeed him in his Honours and Estate as well out of true Affection to him as his nearest Kinsman on his Father's side as out of due Gratitude for the many Acts of Kindness and Service done by the Earl beyond all the rest of his Kindred and Friends upon which he humbly desires his Majesty to confer the Dukedom upon him and that the Eldest Son of the Earl and so successively the Eldest Son of the Family should be called Lord Monk to preserve his Name and Honour in Memory of his Father and of himself There cannot be Words that express more Kindness and Respect and intention of Advantage than are here used There was an Attempt by Proofs in this Cause to shake the Credit even of this very Will but when the Counsel on that side came to speak to it they could produce no proofs that would at all come near it It is plain then that at this time no Man could have more Kindness for another than the Duke had for the Earl In the Year 78 there appears the same sense in the Duke of the Earl's Friendship by his Letters and the Obligations of Gratitude he had to him That he had no Friend in whom he could confide but himself and desiring him to come to assist him in the Management of his Affairs That his Kindness and Friendship was never to be forgotten without the Highest Ingratitude All this is a sort of Evidence against which there is no opposition to be made so it also continued to the Year 80. when he sent him word of a Servant's death and desired him to secure his Papers and Accounts Thus it stood to the time of making that Settlement and while the Duke and he were upon such Terms with one another it was no strange thing that he should make such a Deed as this and the manner both of preparing and executing it seems far from having anything of surprize in it Then the next thing that hath beeen urged was that this being a Settlement under a power of Revocation which he intended to make use of it was Secreted and Concealed from him so that he could not know what his Power was and several Cases were put where a Man in such Circumstances knowingly suffers a Purchaser to go on with his Bargain he shall not have any Advantage by such a Concealed Settlement Those Cases were all admitted to be good and particularly that mentioned by Mr. Baron Powell and my Lord Ch. Just Treby the Case of Mr. Clare And I think truly I need go no further than to say That there is no Resemblance between that Case and this That is where a Purchaser is concerned and the Person that conceals the Deed suffers the Purchaser to proceed without giving him any notice If indeed there had been a full and clear Proof that the Duke had a real intention to Revoke this Deed if he could have known what he was to do in order to it and had been hindred by the Fraud anâ— Contrivance of any Person concerned in it in point of Advantage and if by such Concealment it was impossible for him to know the true Circumstances of his Power that would have made a different Consideration in a Court of Equity but there is no Proof that these Deeds were ever in the hands of my Lord of Bath till some little time before the Duke went beyond Sea when the Duke delivered them to him For as to Aleman's Deposition that was but a delivery upon the Execution and not a delivery for Custody And my Lord of Bath in his Answer says He had not them till then expressly so that as far as that goeth it is all the Evidence you have where the Deed lay all the while And his Answer is fortified in this by what Mr. Courtney says that my Lord told him when he came to him that the Deed it self was in the Hands of the Duke and he had received the Draught from the Duke to advise upon And it is further verified by two Material Facts by the Abstract that was taken about some two Years before by Sir Thomas Stringer and by what is admitted on all hands was by my Lord of Bath delivered up when the Will of 87 was preparing and that the Will of 75 and Deed being produced together under the Duke's Seal after his death it is to be taken that both together were put under the Cover and Sealed up by the Duke and delivered to my Lord of Bath as he himself says in his Answer There being then so much ground to believe that the Deed was in the Duke 's own hands what Obligation should there be supposed to lie upon my Lord of Bath to make any mention of it to him It was always intended to be a private thing that is plain There is no Proof what the purposes of the Duke were in making the Will the Purport and Effect of the thing speaks it self But my Lord of Bath says That
the Paper-draught where the date is in Blank but must be from the Deed it self And how should he have the Deed to do it by unless it was in the Duke's Custody Besides there is a strong proof That the Will of 75 was in the Earl's Custody once for the Duke sent to him into the Country for it and the Earl brought it up with him for it is plain by the wording and framing of the last Will in 87 my Lord Chief Justice Pollexfen had it in his Custody for comparing the one with the other they run so in the same manner that it is impossible but he that drew the last must have the first by him at the same time How then came this Deed of 1681 and this Will of 1675 into the Custody of the Earl of Bath under the same Cover with the Seal of the Duke of Albemarle's Coat of Arms on it for so it was produced first by the Earl of Bath after the notice of the Duke's Death in Jamaica This cannot be imagined how it could be any otherwise than as the Earl of Bath says in his Answer that they were delivered so to him by the Duke a little before his going beyond Sea or else that the Earl of Bath found them so sealed up and covered among the Duke's Writings And either way it is a mighty strong Proof that the Deed was all along till he went to Jamaica in his own Custody and not in the Earl of Bath's But however it is further objected That it was a forgotten Deed. Methinks what I last urged is a very good Proof it was not forgotten but there is yet further Proof of it Not long before he went abroad the Duke had some Discourse with Mrs. Crofts who as she swears was told by him that she should have a good Neighbour at New-hall if he should miscarry beyond Sea to wit my Lord of Bath And Lane that is one of the Duke's Servants doth swear that the Duke told him That after his Death the Earl of Bath would have New-hall Mr. Crosts swears That upon his Application to know who he should address to in case of his Grace's Death the Duke told him all he could do for him was to recommend him to the Earl of Bath and Sir Walter Clarges and ordered him to leave the Keys of his Writings with the Earl of Bath for he was most concerned in them in case he should do otherwise than well It is proved that the usual Discourse of the Family was that the Earl of Bath would have the Estate after the Duke's Death which must happen from some Expressions of the Duke to that purpose And Sir Walter Clarges doth in his Answer swear That the Duke told him he had provided for him as the Earl of Bath knew which could be only by this Deed. And Mr. Greenville swears in his Answer much to the same purpose And Mr. Courtney swears That eight or nine Years ago my Lord of Bath came to him with a Draught of a Settlement to the same effect to advise upon And about three Months before the Duke went to Jamaica he came again with a Copy of this Settlement to advise whether a Will would revoke it and that he gave his Opinion it would not if the Circumstances of the Power were not pursued But now here the Objection recurs again Is it possible to be believed that the Duke should deliberately make so solemn a Will take six Months time in the drawing and publishing of it and then execute it in the Presence of three Witnesses if he had not forgot this Deed but had known all along that there was such an one If he did know it and had acquainted the Counsel that drew his Will with it certainly he would have advised him that unless he did revoke it according to the Circumstances of the Power all this Care and Solemnity would signify nothing Truly on the other side it is to be considered Whether the six Months was taken up in Deliberation and solemn Preparation for making of that Will or whether that was not an Evidence of a Difficulty to prevail upon the Duke to do it at all For I must take the liberty to say there are Proofs in the Case of Importunities used to bring him to it Dr. Benwick did tell the Duke unless he did it the Dutchess would have a Return of her Distemper and be very bad again It is proved that when Money is to be paid for the Counsels Fees upon drawing it the Duke was uneasy and said the Dutchess might pay it if she would for it was her Business There appears great Difficulty afterwards to get him to execute it that Sir Thomas Stringer importuned him much to it upon which he grew very much in favour with the Dutchess and there was Enquiry made for a Baronet's Patent to be got for him all to engage him the more to get this Work done and when it is done how doth he bring it about The Duke was that Day to go by appointment to Sir Robert Clayton's to meet with my Lord Jefferies and seal the Deeds of Purchase of Dalby and Broughton Sir Thomas takes this Will in three parts and three Witnesses along with him to Sir Robert's and after my Lord Jefferies were gone and the Duke in a fretting discontented Humour he gets him into a private Room in that House and then tells him he had brought his Will to him to seal and the Duke as Mr. Crofts swears was unwilling to do it then and would have put him off but he prest the Duke very hard to do it then and told him he must do it for he was to be gone the Northern Circuit the next day and could not be at the Execution of it upon which he did it but not till after much urging and solicitation Now I would argue hence Why should the Duke of Albemarle be uneasy and disturbed at his being importuned to execute this Will after so much Pains and so much Time in the drawing and preparing it I cannot imagine any reason why but that he had not forgotten this Deed which he never intended to alter and yet must do something to satisfy some body's Importunity He knew he should in doing it do a thing that would look very odly one day and that made him so uneasy tho at last he did comply and did it But admit this Deed had been at that time forgotten by him or concealed from him Would this in a Court of Equity be a sufficient Ground to set it aside I confess of a Purchaser where one that claims by such a Deed will stand by and permit the Purchase to go on and conceal the Deed as to that Purchase the Deed will be a fraudulent Deed but there is nothing of that in this Case neither such a Purchase nor such a Concealment And therefore it can signify nothing here to set aside this Deed tho concealed and forgotten But now I come to a third
Witnesses to the Deed says at the sealing of it he wished he could have done more for him But to me one of the clearest Evidences of the Duke's Intention to do this for my Lord of Bath and that it was no Surprize upon him is the Presence of Sir William Jones at the Execution of this Deed for I do take it upon the Proofs it is most evident that he was then present and I will tell you what the Evidence of it is Mr. Vivian says he was often used as Counsel for the Duke of Albemarle and principally relied upon and this Vivian happens to be one of the surviving Witnesses and he positively says Sir William Jones was there and a Witness to the Deed so says Mr. Strode who knew him very well and the third says there was a great Lawyer there tho he doth not pretend to know him it is Clark Mr. Hebblethwaite says he believes the Name endorsed is Sir William's Hand-writing and no better Witness could there possibly be for that purpose than he nor could there be greater Evidence than those multitudes of Instruments that were produced in Court whereby to my Apprehension it did appear plainly that the Characters did very well agree Now if Sir William Jones was there at the sealing of this Deed I think I need say no more upon this Point He was a Gentleman very well known to be both of great Ability and Integrity and Reputation and he would never have given up all his Honour and Reputation and the Quiet of his own Conscience to make one in a Confederacy of circumventing this Noble Duke or defrauding any one of his Estate and therefore believing him first to be present which I really do I cannot but conclude that it was really and bona fide done without Fraud or Surprize Besides this Evidence there are several Discourses also that have been proved wherein the Duke hath declared both his Intention and that the thing was done which sheweth he was not surprised into it I name Mr. Crofts in particular who must be admitted to be a good Witness being one of the three Witnesses to the Will of 1687 and he says the Duke of Albemarle told him the Earl of Bath was to succeed to his Estate It is indeed objected upon this Head What needed then all this Privacy be used VVhy should the Duke conceal it from the Dutchess his Lady to whom he had been so kind in it why from the Duke of Newcastle and the other Trustees Persons of Quality and Honour They say it could not be for any Dissatisfaction the Duke had with his Dutchess for they always agreed very well together and they have read the Testimony of my Lord Marquess of Carmarthen who says that he never observed a Couple to live better together or any VVoman to carry it better towards a Husband than the Dutchess and they have produced you some Letters from the Duke to her which shew great Fondness and Affection to her Truly in the first place I do not know why any Reason should be expected to be given why he useth Privacy in any Action he doth sure he may or he may not at his Pleasure There may be private Circumstances that may induce him and that with very good reason to use more or less Privacy in the Affairs he transacts But besides this they bring you in Proofs that I cannot but mention that the Dutchess had conceived a Displeasure tho it be not known for what Reason against the Earl of Bath that the Duke was uneasy under her Importunities to do what he had no mind to and that was the cause of his drinking so hard to divert himself The Duke was apprehensive she would pursue her Displeasure against my Lord and he should have but an unquiet Life if she came to the knowledg of this Settlement at least till she had prevailed with him to alter it which he resolved not to do Now it may be I speak it with all due Respect to my Lord Carmarthen's Evidence that the publick Carriage might be plausible especially in the presence of one of his Quality and yet there might be some late Displeasure which might break out amongst themselves whenever my Lord of Bath came in Competition with those for whom my Lady Dutchess had more Affection and would make use of her Interest in the Duke about it and the Counsel for the Plaintiffs could very hardly maintain but that the Duke had once an intention that my Lord of Bath should have his Estate till say they he came to have the knowledg of one of his own Name whom he designed to prefer and provide for If so then I am sure the first time that any such change of Mind doth appear is by this VVill of 1687 for before that they do not pretend to any thing done for Colonel Monk and that will serve to answer that Objection that this Deed of 1681 was against the Duke's constant Intent before and at that time It is true he doth call Colonel Monk Cousin in his VVill of 1687 whether he was akin to him or no doth not appear in proof at all in the Case but on the contrary it is in proof that my Lord of Bath is really near akin to him and it was as much his Intent when he made this Deed to keep up his Title and Honour in my Lord of Bath's Family as can be imagined or conceived As to the VVill of 1687 that doth declare his last Intention and that they say is most probable that my Lord of Bath should not have the Estate but Colonel Monk should for it was a VVill made with a great Deliberation being five or six Months preparing great Advice about the drawing of it taken particular Instructions by himself given several Copies made and left with several People On the other side they observe the distance of Time six Months between the Preparation and Execution which is not an Argument that he was very forward to do it but rather an Argument that he was very unwilling to do it and the very time of executing it was when he was very uneasy about his being forced to execute the Conveyances of Dalby and Bronghton to my Lord Jefferies His Mind was then disturbed but if he had had a real Intention and Purpose to revoke the Deed he had an opportunity to get this Revocation done in their Presence and afterwards he might easily have got a third Peer The great Objection is VVhat should the Duke take all this Pains for and this Care and Thought about the Preparations for this Will so carefully execute it deliver the several Parts to several Persons and all for nothing I do admit it is a great Objection and I think there is but one Answer to it but that is a pretty plain and strong one VVhy was all that Care and Thought used about the Will of 1675 and the Deed of 1681 did he intend nothing by it then And if he
Respect for him than to dispute such trivial Matters and for any Leases or Contracts they come within the Rule of Purchases and so the Consideration would preserve them Then they say Here is no Monument for the Duke a Person of so great Quality but that may be made good out of the personal Estate I am sure it is no Objection in point of Law But the last Thing they urge is If there be no Relief in this Case you put the greatest Indignity and Reproach upon the Duke that can be imagined That he should call Mr. Monk Cousin send for him out of Holland to leave his Will with him in the Will give him so great a Share of his Estate desire the King to make him a Baron and appoint his Son to be educated as one that was to make no small Figure in the World that he should send for my Lord Chief-Justice Pollexfen to draw this Will make three parts of it deliver one to the Dutchess of Newcastle another to Colonel Monk and carry a third with him into Jamaica and there take publick notice of it and after all this Expectation raised in Mr. Monk of a Fortune run himself into the Charges of an expensive but what he knew would be a fruitless Suit This say they is an unconceivable Dishonour to the Duke to be represented as one that would prevaricate so with the King and the World and play with the Misfortunes of his Kinsman and the rather because the Duke was a plain sincere hearted Man and in all this did but pursue his real Intentions of Kindness to Mr. Monk and his Children Truly methinks they have just as much to say on the other side What shall those many Declarations of Kindness to the Earl before this Deed in this Deed and after this Deed by Letters and other things signify his Care of my Lord Lansdown as one he was most concerned next to my Lord of Bath himself his Petitioning the King to confer on him the Title of Duke of Albemarle in case of his failing of Issue-Male and all this to signify nothing besides the known Kindred the apparent Obligations and Merit of my Lord of Bath sure if all this be considered the Duke's Honour is as much concerned on this side as on the other to approve himself sincere in all these Solemn Transactions Would he own him as his nearest Kinsman and the most deserving of his Blood and all the while have a secret purpose in the last Act of his Life to make a Will by which he would set aside all he had profess'd to do for him and by leaving this Deed and Will with him leave only so much in his hands as should put him into a chargeable Suit for nothing Therefore upon the whole I think there is greater reason to conclude that the Duke did not certainly mean to do this last Act as what he would have to stand against so much formerly done the other way But I rather think the Evidence is strong to perswade any one that the making of this last Will was to satisfie another purpose and make his own Condition easie at home But my Opinion as to the Judicial part of this Case which I thus happen to be of is the stronger in me because of the Authority of two Cases which I take to be express in Point and those are the Cases of Wynne and Roberts and Fry and Porter In the Case of Wynne and Roberts there was Proof of a very great surprize upon the Man whereby he was induced to make a Will and to disinherit his Child of whom he was before very fond and who was married into a very Honorable Family and to break a Settlement solemnly made before all this Matter was Charged in the Bill and proved But not withstanding this the Court declared they would give no Relief but if they could expect any they must go to Law and at last it was ended only by a Bill in Parliament The Court said Try it at Law a Will or no Will and do not expect the Chancery should make Mens Wills or set them aside if legally made especially then not upon bare Conjectures and Suppositions concerning a Man's intentions to relieve against a Solemn Act and Title found at Law In Fry and Porter's Case one of the great Reasons why the Court denied Relief there was that it was a Controversy between two voluntary Conveyances and there that Side that had the Advantage at Law ought to keep it and it was without Precedent to relieve in any such Case So say I in this Case we have no Precedent of Relief in any such as this now before Us We must not say this Court is unlimited unbounded by any Rules it is no doubt limited by Precedents and Practices of former times and it is dangerous to extend its Authority further If therefore I err in my Opinion in this Case I err with these Precedents on my Side and because I have never an one to guide me the other way the Desendants are in Possession of a Verdict Judgment and Title at Law and I can see no ground of Equity to relieve the Plaintiffs against them Then it being very late the Court put off the delivering of the Lord Chief Justice Holt's Opinion and the Lord Keeper's Decree till another Day Die Veneris 23 Decemb. 1693. In the Court of Chancery in Westminster-Hall Com. Mountague al. adv Com. Bathon al. e contra Lord-Chief-Justice HOLT IN this Case wherein the Earl of Mountague and the Dutchess of Albemarle and others are Plaintiffs and my Lord of Bath and others Defendants I shall open the Case very shortly as it stands upon the two Wills and upon the Deeds There was a Will made in the Year 1675 by Christopher Duke of Albemarle wherein there is a Disposition of several parts of his Estate upon his dying without Issue to several Persons but the main Part and Bulk of it is given to my Lord of Bath And in that Will there is mention made of a particular Esteem and Affection which the Duke bare to my Lord of Bath that he was the nearest of his Kinsmen by his Father's side and that he also was indebted to him for many great Acts of Friendship and Offices of Kindness performed to him and his Father Then there is in that Will also an express Desire that the Title of Duke of Albemarle by the King's Favour might be conferred upon the Earl of Bath and that the eldest Son of the Earl of Bath and so the eldest Son of the Family successively should be called Lord Monk so that the Names of Albemarle and Monk may with the King's Favour remain with his Estate in the Posterity and Family of my Lord of Bath in memory of the late Duke his Father and himself The Estate being so disposed of by the Will of 75 there are two Deeds made in the Year 1681 a Lease and a Release The Release doth recite
to be set aside by this Will I have nothing further to consider in this Case nor are we to make Presumptions and then to make Inferences from thence We are to judge upon the fact as it appears in the Depositions which are plain and clear and upon these we are to determine our Opinions and nothing else that is dark and that we cannot come at further than by conjecture There have been said in the Cause which I omit on purpose because I would mention only those that are most material Upon the whole matter I am of Opinion there ought to be no Relief in this Case against my Lord of Bath and those that Claim by the Deed of 81. LORD KEEPER I Shall first take Notice how these Causes stand in Court and who are the Parties in Judgment before the Court. Here are Three Bills One in which the Dutchess of Albemarle was Plaintiff and since the Inter-Marriage my Lord of Mountague is also Plaintiff against my Lord of Bath and others Defendants and this Bill sets out the law Duke of Albemarle's Marriage-Settlement and his Will of 87 with the Solemnity both of preparing and executing it and doth complain that the Earl of Bath sets up another Will and a Deed in 75 and 81 whereby he seeks to frustrate the Disposition of the Duke's Estate by the Will of 87. And the Bill doth alledge That if any such Deed was ever executed by the Duke which they have reason to doubt and do not admit they believe the same was imposed upon the Duke by surprize and not fairly obtained and by fraud were concealed from the Duke and ought to be set aside in Equity tho' the power of Revocation in the said Deed were not strictly pursued because his intention appears to revoke it and dispose of the Estate otherwise by making the Will in 87. And if it should not be set aside then the Dutchess ought to have the Lands limited to her by that Deed and the Rent-Charge of 2000 l. a year over and besides the Joynture settled upon the Marriage and confirmed by the Will of 75. And the Will of 87 ought to stand good as to the Personal Estate and Legacies therein and so prayeth to be protected in the Enjoyment of the Personal Estate and Specifick Legacies given to the Dutchess discharged of the Duke's Debts There is another Bill brought by Christopher and Henry Monk which complains of my Lord of Bath and the others setting up this Will of 75 and Deed of 81 and I think in the same Words or to be sure to the same effect with the other Bill and prays that both Will and Deed may be set aside and the Plaintiffs may enjoy the Benefit and Estate given them by the Will of 87. Then there is a Third Bill of my Lord of Bath Mr. Greenville and Sir Walter Clarges in which they set out the Will of 75 and the Deed of 81 and the continuance and constancy of the Duke's Friendship and Trust to the Time of his Death and complain that the Dutchess and other Defendants set up the Will in 1687. and do pretend that amounts in Equity to a Revocation of the Deed of 81 and his Bill prayeth that the Personal Estate may be applyed to pay the Duke's Debts in discharge of the Real Estate which they pray may be confirmed to the Plaintiffs in that Suit and a discovery of the Writings about the Real Estate and that they may be brought into Court and delivered up to the use of the Plaintiffs These Causes were first heard before the Lords Commissioners so long ago as the 8th of July 1691. then was there a Decree made That the Personal Estate should be accounted for and applied for the payment of the Debts but before the Court would deliver any final Judgment as to the Real Estate they ordered a Tryal at Law to be had in an Ejectment wherein the Dutchess and Mr. Christopher Monk were to be Lessors of the Plaintiffs and the Earl of Bath Mr. Greenvill and Sir Walter Clarges to be Defendants to try the Title to the Real Estate And the Plaintiffs were only to insist upon the Will of 87. and the Deed of 81. so as that the Defendants Right upon the said Will and Deed might be fairly tryed And all Exhibits were to be left with the Master three weeks before tile Tryal for either side to inspect take Abstracts and Copies of as they should think fit According to this Order in the Michaelmas-Term after there was a Tryal at the King's-Bench-Bar and upon that Tryal a Verdict past for the Defendants in the Ejectment the Earl of Bath c. upon the Will of 75. and Deed of 81. After the Tryal these Causes came to be heard again before the Lords Commissioners about a year and a half since at that time there was no complaint made of the Verdict nor any Motion for a new Tryal But after the Councel had been heard several days the Court took time to consider of their Judgment and before Judgment one of these Causes abated by the Marriage of my Lord Mountague and the Dutchess and by that and other Accidents the Cause hath been delayed till the late Hearing before the Court assisted by my Lords the Judges who have delivered their Opinions And now the Causes stand for the Opinion of the Court upon what appears in the Pleadings and Proofs and what has been so largely insisted upon on either side Upon which the Verdict being at Law for the Defendants I must take it as my Lords the Judges have already declared not only that these Deeds of Lease and Release of the 15th and 16th of July 1681. were duly sealed and executed by the late Duke of Albemarle but also that they stand still in force and unrevoked at Law for if they had not been so the Verdict could not have been as it was for the Defendant Therefore as that must be taken for granted that these are good Deeds in Law the only Matter at present for the consideration of the Court is Whether upon the debate of this Cause there be sufficient Ground in Equity for this Court to interpose in the Case so as to set aside these Deeds as not good in Equity or revoked by the Will of 87. or no And I shall as to the Matter of the Question conclude my Opinion the same way with my Lords the Judges that have delivered theirs before And with respect to this Matter I shall here consider who the Parties are in Judgment before the Court and what hath been alledged as Reasons and Grounds to induce the Court to set aside this Deed in Equity Here is no Purchaser in the case no Creditor no Child unprovided for but all the Parties claim by voluntary conveyances on the one side and the other so that at least they stand equal or if there be any circumstances as to the Persons that have any weight it is on the part of my Lord
THE ARGUMENTS OF THE LORD-KEEPER THE TWO Lords Chief Justices AND Mr. Baron Powell When They Gave JUDGMENT FOR THE Earl of BATH Die Martis 12 Decemb. 1693. In the Middle-Temple Hall Com. Bathon adv Com. Mountague at al. THIS Day being appointed by the Lord Keeper to hear the Opinions of the two Chief Justices and Mr. Baron Powell who assisted at the hearing of this Cause and to deliver his Lordship 's own Judgment therein Mr. Attorney General moved on the Behalf of the Earl of Mountague c. for the Judgment of the Court and Mr. Baron Powell delivered his Opinion first Mr. Baron Powell The Question in this Case is Whether there be any Ground in Equity to set aside a Deed of Release made in July 1681. for the Settlement of the late Duke of Albemarle's Estate by which my Lord of Bath claims The Validity of this Deed hath been tried at Law upon an Ejectment in the Court of Kings-Bench by Direction of this Court where the Title has been found for the Earl of Bath by the Strength of this Deed so that it must be agreed my Lord of Bath hath a good Title at Law because the Verdict hath found it so and all Parties concerned have hitherto acquiesced under this Verdict This Case comes now back upon the Equity reserved and it is only now to be considered what Matters of Equity have been offered to avoid this Title thus found at Law And those I think may be reduced to five Heads First That this Deed was obtained by Surprize and Circumvention Secondly That it was a concealed and a forgotten Deed. Thirdly That this is a Deed attendant upon a Will and so revocable in its own Nature although it had no Power of Revocation in it Fourthly That there is an implied Trust in this Deed that the Duke might have charged the Estate to the full Value and consequently might well dispose of it in Equity And Fifthly That the great Solemnity and Deliberation used about making the last Will and the publishing that Will do amount to a Revocation in Equity notwithstanding that the Circumstances of the Power are not strictly pursued I am of Opinion in this Case that this Deed having been affirmed by a Verdict upon a Solemn Trial at the Bar at Law none of these Matters are sufficient for to ground a Decree in a Court of Equity to set aside this Deed and I shall give you my Reasons for this Opinion in the same Order I mentioned those Heads in with particular Answers to the particular Objections under each Head 1. It is said this is a Deed that was obtained by Surprize and Circumvention Now I perceive this word Surprize is of a very large and general Extent They say if the Deed be not read to or by the Party that is a Surprize Nay the Mistake of a Counsel that draws the Deed either in Misrecitals or other things that is a Surprize of the Counsel and the Surprize of the Counsel must be interpreted the Surprize of the Client These things have been urged in this Case and I thought fit to mention them for the introducing my Reason against this Head of Argument and it is this That if these things be sufficient to let in a Court of Equity to set aside Deeds found by Verdict to be good in Law then no Man's Property can be safe I hardly know any Surprize that should be sufficient to set aside a Deed after a Verdict unless it be mixed with Fraud and that expresly proved and I know not of any such proved in this Case It is true Duke George by his Will and the Settlement made upon his Son at his Marriage takes no notice of or makes any Provision for the Earl of Bath but that I take it is not to be regarded as any way material at all because he takes no notice in either of them of any Body else but him that was his Heir But I must observe here by the way that there was not only a very near Relation between Duke George and the Earl of Bath but a very intimate Friendship cultivated by mutual Offices of Kindness between them to his Death And I must mention one Particular because to me it seems a clear Answer to this Objection that is His making no Provision for the Earl in the Will or Settlement might be the Occasion why Duke George did make such â—n earnest Application to King Charles the Second that upon Failure of his Issue Male his Majesty would please to bestow the Dukedom upon the Earl and annex Theobalds to it which would then revert to the Crown And that King did often promise he would and afterwards did it solemnly under the Sign Manual But then it is said that after this Duke Christopher made his Will and therein there is no notice taken of any such Disposition of his Estate to the Earl of Bath but that is not I think to be regarded neither because that was a Will only of his Personal Estate and made when he was under Age and could not dispose of his Real Estate Then come we to the Year 1675. when the Will was made to which this Deed has some Relation and by that Will Duke Christopher doth settle a great Part of his Estate upon Failure of Issue of his own Body upon my Lord of Bath There is no Pretence of any Surprize upon the Duke when he made this Will and it is plain then he had an Intention that my Lord of Bath should have a great Share in his Estate if he died without Issue Now then it is to be considered what there is of Proof in this Case of any thing that might be a Ground to conceive why he should alter this Intention between the Years of 1675 and 1681 when this Deed was made There is no Proof of any Misunderstanding between the Duke and the Earl in that Interval but on the contrary that there was a continual Friendship and Intercourse of Kindness between them all the while as doth appear by a continual Succession of Letters and other Correspondences passing between them in those Years one of which I cannot chuse but take notice of because of the Date of it to wit in June 1681. upon my Lord Lansdown's Intention to travel wherein the Duke takes notice of the Interest he had in my Lord of Bath's Family and particularly in his eldest Son as the greatest next to that of the Earl himself And I say I mention this Letter because of the Date that it is so near the very Date of the Deed that it is possible the Date was then made because it was within a Month after that Letter sealed and executed therefore it might well be referr'd to in it Next this appears to be a Deed drawn by the Duke of Albemarle's own Counsel Sir Thomas Stringer for it is proved the Paper-Draught is all of his Son's Hand-writing except the first and last Sheet and all of it interlined
with Sir Thomas his own Hand Errington has proved the Abstract al of Sir Thomas his Hand with the very date in it and swears that Sir Thomas examined it with him Now is it to be imagined that Sir Thomas Stringer should prepare such a Settlement for the Duke to execute without any Order or Instructions from him about it No certainly that cannot be thought But they say Sir Thomas Stringer if he did draw it might forget it or overlook it and he now denies any Knowledg of it Truly I cannot value much what Sir Thomas Stringer has sworn in this Cause he is not consistent with himself and makes but a very odd Figure in the Cause Mr. Stringer My Lord I beg your pardon for interrupting Mr. Baron Powell but I must vindicate my Father he never swore a word in this Cause Lord-Keeper No he did not he was dead before the Cause came into the Court. That was a Mistake Mr. Baron Powell I am sure there was Oath of what he had said about this Deed. Mr. Stringer That my Lord you may make what you please of but he never made any Oath in the Cause Mr. Baron Powell But that which I mention him for was that there is Proof apparent that he was advised with about this Deed and he was the Duke's constant Counsel I do not think I confess that Sir William Jones did draw this Deed it is not insisted upon by the Counsel of my Lord of Bath that he did and any one that considers the Frame of it will think as I do But I conceive he was advised with upon the Proviso and the Writing in the Margent against the Proviso I approve of this Proviso I believe to be his Hand Though several Persons of good Credit that were well acquainted with his Hand have sworn they believe it not to be his Hand But they might be mistaken and to me it appears by the Comparison of the Records Deeds and Papers in open Court for it is plain according to the various Nature of the several Things he writ or set his Hand to he did write several Hands and particularly wrote his Name sometimes one way and sometimes another And therefore upon Comparison of that with other Papers I do believe it to be his Hand The next Thing I would mention is this Here are six subscribing Witnesses to the sealing and executing of this Deed at Albemarle-House of which Sir William Jones was one And one Aleman that is one of the Witnesses swears That when the Duke delivered the Deed to the Earl of Bath he wished he could have done more for him It was probable then the Duke believed he had done something for him and it is very probable too he knew what he had done for him when he wished he was able to have done more And Mr. Prideaux swears though he does not exactly fix the time that the Duke told him himself he had settled his Estate upon the Earl of Bath Then I say it is hard to believe the Duke was surprized in making this Deed when his own constant Counsel drew it so able a Counsel perused and approved so main a part of it and was present at the Execution of it and he should express his Wishes to be able to do more can he be supposed not to know what he did But now let us examine the Evidence and Objections on the other side They say it doth not appear that this Deed was ever read to the Duke or by him It is indeed proved the last Will was read to him by my Lord Chief-Justice Pollexfen but not at the time of the Executing of it But however I think the not reading of a Deed to or by the Party that executes it is a very slender Objection to make out a Surprize so as to set it aside That would shake many a Conveyance I doubt it would shake many Deeds that were made and executed by the Duke For though he was so cautious as some of their Witnesses say that he would not execute any Deeds but what his Counsel set their Hands to yet I do not find that any of them used to be read to him or he himself read them at the time he sealed them Therefore it is a dangerous Doctrine to set aside a Deed upon such an Account Some People will not have Leisure to hear Deeds read or read them themselves Then they object the Mistakes and Mis-recitals of the Limitations of the Will in the Deed which refers to the Will as particularly that of Norton Disney and some others of less moment But God forbid that the Mistake of a Counsel in a Recital in a Deed should be of that great moment as to set aside the Deed when executed by the Party But there is another Matter much insisted on by them as an Argument of Surprize that is This Deed is pretended to be made in Confirmation of the Will in 75 and yet it varieth from that Will in almost all the Limitations of the Estates except in some part of that to my Lord of Bath I confess I have look'd over the Variations and there are several but I have this in general to say to it that I take it this Deed was made for the sake of the Earl of Bath and that it was for the Earl's better Security that he bound himself up by so strict a Proviso not to revoke And if you look into the Deed it will be found to confirm the Will as to my Lord of Bath which was the main Point of both Deed and Will For it sets the Estate given to him upon a firmer foot than it was by the Will which was revocable in its Nature Therefore it must be intended as no doubt it was for that very Purpose to secure it more to my Lord of Bath than it was by the Will But that which is said to be an Argument of the greatest weight and moment in this Matter that there must be Surprize in the Case is this It is hardly to be believed and almost impossible that the Duke should send for Mr. Monk out of Holland by his Will desire the King to bestow upon him the Barony of Potheridg the ancient Seat of the Family make a Disposition of his Estate by a Will so solemnly prepared and deliberated upon take care to have three parts of it one whereof was to be transmitted to the Dutchess of Newcastle another part delivered by himself to Mr. Monk and the third part taken with him to Jamaica and there pulled out and declared to be his Will and yet intend no real Disposition of his Estate by all this These are things so dishonourable to the Duke that they are not easily to be believed of a Man of his Honour and Quality I confess this is an Objection of great weight and carrieth much Presumption with it but it is Presumption only which how far it shall conclude against a Verdict is left to Consideration But besides I
Head of Objections That this Deed is a Deed attendant upon the Will of 1675 and so revocable in its one nature as a Will would be altho it contained in it no Power of Revocation This was very warmly insisted upon by the Counsel of Mr. Monk I confess there is such a thing as a revocable Deed attendant upon a Will which is revocable that is where a Man doth suffer a common Recovery and makes a Deed subject to his last Will and Testament such or such an Use may be declared by Indenture under Hand and Seal as intended at that time of the Recovery But this Indenture after it hath declared that Use being founded upon an Assurance that was always subject to Uses declared in his last Will that Will being always changeable the Deed may be always changeable And so is the Case in Dyer 314. 6. And the Reason is given in my Lord of Ormond's Case in Hobart 349. by the Opinion of two Judges against one because the Foundation which is his last Will is always revocable But such an Indenture to declare Uses is revocable but a Feofment or a Lease and Release to Uses referring to a Will or made to confirm a Will that that should be revocable there is no Colour nor any Authority of Law for it The fourth Head is That there is an implied Trust that the Duke might charge this Estate to the full Value therefore in Equity he might dispose of the Land This Objection doth arise upon a variance supposed between the ingrossed Deed and the Paper-draught For it should seem that one of the Sheets in the Paper-draught is cut just where this Trust is declared and so they would presume it a general Trust which would subject the whole Estate to the Duke's disposal But as to this Matter it is sworn by Thompson who ingrossed the Deed that he ingrossed it by the Paper not cut and did ingross it truly according to the Draught and he was believed by the Jury so to have done Therefore I suppose it was cut since and if it were the Question is by whom it was cut Truly I think it not worth the trouble of enquiring after that but it is most probable it was not cut by those to whose disadvantage it would turn to cut it But here doth arise a considerable Objection By the Will of 75 there are 20000 l. Legacies given and here is a Trust that doth subject this Estate to the Legacies of that Will of 1675 is revoked by the Will of 1687. Shall then the Earl of Bath hold this Estate free and discharged of any Legacies by the last Will I must confess this was objected on one side but not debated on the other side because they that were of Counsel for the Earl of Bath thought it did not concern this Question now in debate That they said might be a Question another Time between my Lord of Bath and any Persons that may come here to have any Legacies given them by the Will of 1687 if the Personal Estate will not answer I cannot say positively but they may be payable out of this Trust though I give no Opinion in the Matter it not having been debated and so I have not considered it But sure the consequence of that if it should be so would not be what this Head of Arguments I am upon would infer That if the Duke might charge the Estate with Legacies therefore he might dispose of it for he hath bound up himself by this Proviso not to dispose of it but under such and such Terms And that brings me to the last Head Whether this Will of the Duke of Albemarle made in 1687 and so solemnly done be a Revocation in Equity though it do not strictly pursue the Circumstances of the Power I know not any Rule more clear in our Law-Books than this that all the Circumstances prescribed and required in a Power of Revocation must be observed to make it a good and effectual Revocation So is Scroops Case so is the Case of Kibbett and Lee. There is indeed a favourable Judgment to be given in expounding Powers but both those Cases still agree that all the Circumstances must be strictly observed It may be said then they must be observed in Law but in a Court of Equity it makes another Case For when a Man hath a Power over an Estate those Circumstances are only a Guard upon himself that he may not be surprized into a sudden disposition of it But when deliberately and solemnly he hath done an Act whereby he disposeth of this Estate but there wants some little Ceremony or Circumstance such as the not tendring 12 d. or the like a Court of Equity ought to supply such a Defect to support his solemn Intention to dispose of it For plain it is he is not surprized into this Act and so the Reason for those Circumstances does fail and they need not be strictly observed This way of Arguing may seem specious in a Court of Equity I confess but really I think I am able to give a very plain Answer to it and that from the Nature of Powers of Revocation It is certain no Conveyance at the Common Law could have a Power of Revocation annexed to it As a Feoffment and Livery of Seisin and that because the Law would not admit such an Absurdity that a Man should give an Estate absolutely to another but yet reserve a Power to recal it from him at his Pleasure It is such a repugnancy as the Common Law will not permit But a Man might have done this at Common Law he might have annex'd a Condition to his Feofment that if he tendred 12 d. to the Feoffee or his Heirs he might enter upon the Estate so that the Estate which was Devested out of him by the Livery of Seisin might have been revested by a performance of the Condition and Reentry So it stood at Common-Law But after the 27th of H. 8. for transferring Uses into Possession Uses became more pliable than Conveyances at Common-Law wherein this Matter and then Powers of Revocation first came in use and fashion Not but that it is as repugnant to a Conveyance after the Statute as it was before for certainly it is repugnant to give an Estate away and yet have a general Power over that Estate But a Power of Revocation was let in as a Condition and would work as a Condition but whereas the performance of a Condition at Common-Law would not work a revesting of the Estate without a Reentry now the performance or execution of the Power doth transfer the Estate to the new Uses or revest the Estate in him that had the Power without any Reentry But still there is now a necessity of the Powers being performed as there was of the Conditions being performed at Common-Law for it is in the nature of a Condition and no more So is Inglefield's Case 7 Co. 39. There was a voluntary Conveyance made with a
might be obtained from him by Surprize These are the Considerations and Reasons expressed in the Deed why he gives this Estate away from his Heir at Law Both this Deed and Will agree in this for substance that they limit the main part of the Estate to the Earl of Bath tho they differ in several of the Limitations to divers Persons and as to some of the Limitations to the Earl of Bath they differ too whether material or no shall be considered by and by There is in this Deed a Proviso which makes the great Question in this Case that the Duke should have Power to revoke any of the Uses in the Deed and limit new ones but this Power is restrained by several Circumstances it must be by writing under his Hand and Seal in the presence of six Witnesses three whereof to be Peers of this Realm and a tender of 6 d. to the Trustees named in the Deed. Afterwards in the Year 1687 the Duke makes another Will and thereby he giveth some Parcels of his Land to Mr. Bernard Greenville my Lord of Bath's Brother Sir Walter Clarges and others and makes some larger Provision for the Dutchess for her Life than she had before but the main bulk and residue of the Estate is by this Will given to Colonel Thomas Monk Father of the Plaintiffs And he doth likewise in that Will make a Petition to the King that he will be pleased to confer a Title of Honour upon him and make him Baron Monk of Potheridge the Ancient Seat of the Family That Will of 75 and the Deed of 81. are subscribed by six Witnesses each this Will of 87 but by 3 and so the defect of this Will to make it a Revocation is that there are but three Witnesses and none of them Peers and there was no tender of 6 d. to the Trustees The intent of the Earl's Bill is to have an Establishment of this Deed against this last Will and the intent of the Dutchess and Mr. Monk's Bills is to set aside the Deed and establish this last Will and that upon certain Grounds of Equity the Deed having obtained a Verdict for it at Law This is the general State of the Case the particulars will be brought in best under the several Heads that I shall mention But first I shall take notice as I go what Progress this Cause has had since it was first in Agitation First it was insisted That this Deed was a false Deed and that was thought fit to be directed to a Tryal at Law and it was most proper it should be so for it concerned a great Inheritance and Free-hold conveyed by Deed and a Devise both Titles at Law and that was fit to be decided in the proper Judicature for such things in a Court of Common-Law by a Jury Accordingly this Tryal was directed in an Ejectment at the King's Bench Bar and this Court so far aided the Parties to come to the proper Question as to order there should no Incumbrances stand in the way or be insisted upon but any thing that obstructed the Tryal of the Right should be set aside So that in short the Validity of this Deed was the thing directed to be tryed it was accordingly tryed and thereupon a Verdict obtained that the Deed was a good Deed and the Earl of Bath's Title under it good at Law and Judgment was afterwards entred up and that for the Defendant's part was not conclusive if there had been any Misdemeanour on the other side or in the Jury they might have had redress by applying to this Court for a New Tryal nay they may try it again when they please upon a new Ejectment But they have acquiesced under it to this day that is to say now for two Years together so that we must take it for granted at least this Court is I conceive bound by it that it is a true Deed and a good Conveyance of the Estate as much Evidence there is of it as is possible so strong an Evidence that we must take it to be a true and a good Deed and a Deed without Suspicion Twelve Men besides the Witnesses to it have Sworn the Validity of it that being the sole Question before them and this must be remembred all along in the Consideration of this Case Indeed the Counsel on the other Side did seem to speak a little slightly of it as upon a doubtful Evidence and at last that it is true by this Verdict they must admit that this Deed was sealed by the Duke though that was not a little controverted before But in truth here is the Right tryed it was a Deed that was a Conveyance of the Estate and now we must take it for granted that the whole of the Deed was tried and confirmed by the Verdict so that it is a good Conveyance at Law and passeth all that the words can carry And therefore in our Consideration of this Case we must lay aside all the Evidence that was or was properly to have been given at the Trial as to the Truth and Validity of the Deed And I for my part can allow my self no Consideration of this Deed in speaking to it but such as are Considerations of Equity consistent with the Truth of the Deed. And that is now the only thing that is to be applied unto what there is in Equity and Conscience why this Deed should be set aside when it is allowed to be good in Law there is no doubt but there may be good Ground in some Cases in Equity to set aside that which is good at Law But the Question is whether in this Case there be any such or no. But before I proceed to the Consideration of what has been insisted upon in that kind I desire to take notice of some things about the Will of 87. I am very well satisfied that that Will is well proved There is my Lord Chief Justice Pollexfen hath proved the Instructions given for the preparing it and the drawing of it and there are three Witnesses that speak to the Publication and this is confirmed by the Testimony of Sir Robert Clayton who transacted the first Part of that Affair to bring the Duke and my Lord Chief Justice together and I do equally reject all the Evidence on the one side and the other against the Truth of either the Deed or this Will Then this Will would have been a good Disposition of the Lands if the Law did not hinder that is if this Deed did not stand in the way as a prior Disposition and found good in Law so the Deed is good if Equity do not hinder it Now the Grounds of Equity which my Lord Mountague's Counsel insist upon are I think these I have made indeed but four of them but in Substance I do not differ from my Brother Powell about them for I comprehend that the Deeds being Ancillary as it was called and attendant upon the Will under the Head of a Revocation in
Equity I say the Heads of Equity insisted upon to set aside this Deed are four First Surprize and Circumvention in obtaining of it and that relates to the Creation of it Secondly Concealment from the Duke and this by my Lord of Bath and so he was not informed how his Power was circumstanced and therefore not able to execute his Power according to the Circumstances which makes it become a fraudulent Deed and for that Cause the Plaintiffs shall have Relief against it Thirdly Here is a Revocation in Equity though it be not in all Points such as would be sufficient in Law yet here is so much done towards it such a Solemnity in the Action done and such an Impediment of doing more as will amount to an equitable Revocation The fourth Head is that which was mentioned of the Trust in the Deed. As to the first Point of Surprize it was a Head much laboured by the Counsel on the Plaintiffs side and yet I confess I am still at a loss for the very Notion of Surprize for I take it to be either Falshood or Forgery that is though I take it they would not use the word in this Case Fraud if that be not the Meaning of it to be something done suddenly and unawares not with all that Precaution and Deliberation as possibly a Deed may be done Here was a Case cited not long ago in another great Case in this Court out of the Civil Law about Surprize but that was under another Head that is a Man was informed by his Kinsman that his Son was dead and so got him to settle his Estate upon him this is called in the Civil Law Surreptio I know not whether that Word will answer those Gentlemens Notions about this Matter Now the Civilians define that thus Surreptio est cum per falsam rei narrationem aliquod extorquetur when a Man will by false Suggestions prevail upon another to do that which otherwise he would not have done And I make no doubt but Equity ought to set aside that but then this is Properly called Fraud and that must be made out it can never be intended I find not any such thing pretended to be made out that my Lord of Bath did use any false Suggestions to the Duke or Informations at all for what appears in the Proof I beg Pardon if I mistake or forget any of the Proof Then here is Matter of a Surprize objected which must be something that will not avoid this Deed at Law but will avoid a Deed in Equity which yet is not direct Fraud or Falsehood in the Party but is to be gathered out of the particular Circumstances of the Case but what in certain to make of it I confess I cannot tell I would repeat the Words that the Plaintiffs Counsel used they say it is absurdly drawn it was unduly put upon the Duke 't was done without his perusing it or having it read to him it was contrary to his common Intention before and after the Sealing of it It must be admitted that there was Deliberation and Consideration and Intention enough proved to make it a good Deed at Law otherwise there would not have been a Verdict for it but it should seem there was not enough of these in Equity and the want of this is what they call Surprize and that must avoid this Deed in Equity But I confess I am not satisfied that there were any Surprize in this Case in any thing the Duke at the time of making this Deed was under no Force no Restraint no false Information as I observe no nor any Solicitation from my Lord of Bath at all he was in his own House at his full Liberty he was in very good Company for I take it for granted as I shall insist further by and by that Sir William Jones was by at the Execution of this Deed and a Witness to it the Duke was under no Sickness no Weakness and I must take notice of one Proof more which was mentioned he had not been drinking but was in very sober Company This appears to be the Condition in which the Duke was at the Sealing of the Deed in question But let us consider what are the Particulars of Surprize that they who oppose this Deed insist upon I think they are reducible to these three There was a want of collateral Circumstances that use to attend the Execution of Deeds made with good Deliberation and without Surprize Then there are some Observations made upon the wording of this Deed which argue Surprize and then they say it must be obtained surreptitiously because it is contrary to his constant Intention and all the Course of his Actings as well before as after that time First they say there is a want of Collateral Circumstances that are to attend the Execution of Deeds made with good Deliberation and without Surprize and that it appears in these Particulars First it doth not appear who drew this Deed It is certain they say that it could not be Sir William Jones and I think so too They observe and with very good Reason that he saying I approve of this Proviso doth prove that he did only concern himself with the Proviso and did apply himself singly to that and did not manage the Body of the Deed. Then it doth not appear that the Draught of this Deed was read or the Deed subsigned or countersigned by Counsel as was the Duke's usual Method nor was there any Counterpart of the Deed Whereas to the Will of 87 it was carefully drawn and made and three Parts of it prepared and then there were very great Persons concerned as Trustees in this Deed and yet several of them knew nothing of it To this I must acknowledg that the Objection is for the most part true but how far it is an Objection we shall consider farther by and by First for the want of Instructions about the drawing this Deed this is now above 10 Years before it comes in question and such Instructions there might have been but in length of time lost or laid aside and when once a Deed is actually made great Persons as well as lesser ones are careless of the Preparations for such Deeds the Deed binds the Estate and if that be carefully kept there may easily be a Negligence as to the rest I did observe before that though the particular Limitations in the first Will and this Deed do differ yet both Deed and Will do agree in Substance to settle the Bulk of the Estate to my Lord of Bath It is likewise observable that there is a strong Proof Sir Thomas Stringer drew this Deed for his Hand is interlined in every Sheet of the Draught and as I do remember his Son writ it Sir Thomas Stringer was at that time my Lord Duke's Counsel and I confess there have been reported several things about this Matter from his Mouth which because they are very various and inconsistent I wish he had been
therefore might in these Particulars vary in the Deed from the Will of 75. But I would still have this observed that in substance they do agree he doth preserve the same Favour and good Intention for my Lord of Bath to give him his Estate as his nearest Kinsman If then these Limitations in the Deed were pursuant and agreeable to the Duke 's then Mind it is no matter if there be any such Variations or Alterations from what was in the Will and that it was agreeable to his Mind then I shall by and by take notice of some things that occur in this Case and which seem to satisfy me in it that this was his Intent For I did observe that one thing they insisted upon to shew it was by Surprize was that this was contrary to the Intentions of both the Duke of Albemarle and the constant Series of Purposes in the Family and they undertake to give Instances of it The Defendants Counsel say that his Intention was to give his Estate to the Earl of Bath who was his near Kinsman to whom he had very great Obligations that my Lord of Bath was concerned in that great Action of Restoring the Royal Family which was the Raising of his own that he was a constant Friend of Duke George and his and his Sons chief Counsellor and Adviser and that the Family were under great Obligations is and must be admitted both from what is in the Deed expressed and what is otherwise proved But the Plaintiffs say no they had no such Intention neither one or other of them and particularly Duke Christopher had none neither before the making of this Deed nor after Duke George he makes his Will in June 1665 wherein he gives all his real and personal Estate to his Son and nothing at all to my Lord of Bath I did look into the Will which is very short and there is nothing given to any Body but his Son That is the whole of the Will Then in the Year 1669 is the Settlement made by Duke George upon his Son's Marriage and there is nothing settled upon my Lord of Bath not so much as a remote Remainder In 73 Duke Christopher makes his Will and therein gives great Legacies to the Dutchess but none to the Earl of Bath These are Instances before this Will and Deed but the Answers given them are these which make me not satisfied with the Plaintiffs Objection or Proofs of his never Intending to give my Lord of Bath his Estate First as I said Duke George's Will is very short and takes notice of no Body but his Son and as he gives nothing in it to my Lord of Bath so neither doth he to any Body else and that very Devise is void because it was to the Son and Heir to whom it would without that have descended and it signifies very little to their purpose being in the same Year with King Charles's Sign-Manual at his Request to promise the Earl the Dukedom upon failure of Issue-Male As to the Marriage-Settlement in 1669 there is indeed nothing settled on the Earl of Bath so much as in remainder but in such Settlements Men usually do provide only for the Issue of that Marriage and so leave the Disposition of Remainders to Subsequent-Settlements As to the Will of Duke Christopher in 1673 at that time they say he was but a Minor of 20 Years of Age and it was only to dispose of his Personal Estate for as to his Lands if he had made any Devise of them it had been void and the personal Estate was at that time about 60000l But within a Year or two after that when he came of Age is the Will of 75 made and there is a mighty liberal Gift made to my Lord of Bath and pursuant to his Father's Desire and King Charles's Privy-Seal doth he make that Request for the Dukedom for my Lord of Bath And it must be observed upon all these things that as there is nothing given to my Lord of Bath in Duke George's Will and Settlement nor in Duke Christopher's Will in 1673 so nor is there any Lands in either of them nor in the Will of 1675 or Deed of 1681 given to Thomas Monk the Father of the now Plaintiffs so that that Objection is much stronger against them than against my Lord of Bath Now I do not find any Proof of a Provocation or Cause given by my Lord of Bath to make the Duke totally change from this Intention to give him the greatest part of his Estate and 〈…〉 put him quite out of his Favour nor doth it appear he was so here were several Letters read there have been Copies of them brought us and I have look'd upon them against these Letters it has been observed that there is no notice taken in any of them of this Deed but there is some of the Will of 1687 while the Duke was in Jamaica about the Death of Colonel Monk I confess I cannot say there is any one Letter that speaks of this Deed by the Name of a Deed but there is one or two that hath an Aspect upon it and very near respect to it and cannot refer to any thing else particularly that which was written relating to my Lord Lansdown when he was going to travel and another about his Marriage wherein he takes notice how much he was concerned in him even next to his Father himself as he very well knew and that he wrote so much about him for Reasons best known to the Earl himself this seems to point at some Conveyance and aims at this Deed to my thinking directly They have made another Objection That the Duke never intended to leave any part of his Estate to Sir Thomas Clarges because he was under the Duke's Displeasure upon account of something he took ill from him but that receives an easy Answer What is limited to him is but a Remainder and that of no great Estate neither Besides that the Evidence of the Duke's being displeased with Sir Thomas is but a hearing by a third Hand but I find no Displeasure proved at all that was conceived by the Duke against my Lord of Bath to the last Come we then to the time of making this Deed and let us see whether the Duke did really intend what the words of this Deed do import and that I think is made evident by Proofs that have not been answered or contradicted The Deed takes notice of the very great and many Acts of Friendship and Kindness received by him and his Family from my Lord of Bath and it is proved the Duke declared it ought never to be forgotten nor could he ever make him sufficient Amends It should seem he had procured his Father's Garter for him when he might have had it himself he thereupon tells Mr. Prideaux that he was setling or had setled his Estate upon my Lord of Bath which must be much about the same time that this Deed was made One of the
this Deed was in my Lord of Bath's hands they say Aleman proves it who says it was delivered into the Earl's hands This was look'd upon as so material a Point in this Case that the Deposition was called for to be reviewed and upon reading it again it was plain it must be understood of the delivery of the Deed only to execute it and make it a good Deed not a delivery into his Custody Nay there is farther strong Evidence that it was in my Lord Duke's hands and not in my Lord of Bath's for Sir Thomas Stringer doth a little before the Duke went beyond Sea make an Abstract of it and delivers it to his Man to make a Copy of And when after the Duke's Death both Deed and Will were produced under one Cover but it is plain the Will was delivered to the Duke this answers it and agreeth to what my Lord of Bath saith in his Answer that they were both delivered to him by the Duke a little before his going to Jamaica under that Cover and sealed with the Duke 's own Seal and so they are found And truly if it were but doubtful whether it were in the one hand or the other we must not determine that it was in my Lord of Bath's hands or convict him or any Man of Fraud where the Evidence is doubtful it ought to be proved and plainly proved for Fraud is a thing odious and never to be intended or presumed But the truth was this Deed was concealed not from the Duke but from the Dutchess that she or her Counsel should not get at it to procure a Revocation As for the Case of Charles Clare that was mentioned it doth not in any sort come up to this Case he had lent Money upon a Statute afterwards Money is lent upon a Mortgage of the Lands liable to that Statute He ingrosseth the Mortgage and never discovereth the Statute the Lands were not worth more than the Mortgage Money and by reason of this Concealment it was adjudged Fraud in him and he should have no benefit of his Statute against the Mortgagee Here was a knowledg proved in the Case which is not in my Lord of Bath's that the Duke would revoke and yet I must needs say and I appeal to those Gentlemen that usually attend at this Bar whether they did not think it a hard Case And as to the Case of Raw and Pott besides that it was a Case between a Younger and an Elder Brother and so might have a better Ground or Handle for Equity yet I think it was justly decreed because the Party knew it and concealed it on purpose and encouraged the thing for when he was asked why he did not discover it then he answered If he had then there would have been a Fine levied and a Recovery suffered and then he knew all would have been well enough but there is no such matter as knowledg or the like here The next Head of Objections is that of a Revocation in Equity and for that the first thing insisted upon is this They would have the Deed of 81 to be depending upon the Will of 75 it was ancillary it leaned upon it and therefore this Will of 87 revoking the Will of 75 revokes likewise the Deed of 81 And for this they did cite two Cases out of Dyer The first is fol. 49. 6. A Man makes a Feoffment to perform his last Will and the Will is annext to the Charter of Feoffment and Livery of Seisin is made accordingly it was adjudged that he might alter and revoke that Will though it took effect by the Livery For that doth not alter the Nature of a Will which is always revocable by the last Will But doth that revoke the Deed too No certainly the Deed stood good and there is nothing to the contrary appears in that Book The other Case is Dyer 314. 6. A Man by Deed indented declares That whereas he had suffered a Common Recovery to the intent to perform his Will touching the Disposition of his Lands he Wills so and so and whether he could during his Life alter the Uses in this Indenture was the Question and it is held he might For this Indenture is quasi a Will which is changeable I will go further than that I say it was a Will or it was nothing for though it were in form of an Indenture between several Parties yet when he says he Wills so and so after he had recited a Power to declare by Will this must be taken for a Will or it is no execution of the Power for when a Man suffers a Recovery or makes a Conveyance to me of his last Will he hath two Interests in it he may dispose of it as Owner or by way of Direction If he will dispose of it by way of Direction as this was he must follow the Method prescribed and that must be by Will and so this must be a Will or no execution of his Power But what is that to this purpose that a Will which a Deed is made to Confirm being revoked that shall revoke the Deed too sure that is no consequence nor hath any Ground upon this Case But then say they here is a Revocation and that a Revocation in Equity for though it be a good Deed in Law yet there is such a contrary disposition by this Will as must revoke it being revocable according to the Power Indeed here is not the Number of Witnesses required nor the Quality nor a tender of the Money and Powers of Revocation for it is natural Equity that he who is Owner of an Estate should dispose of it as he pleaseth But there is another Rule of Law that is as certain as any other that all Circumstances must be observed or the Power not well executed and that is Scroop's Case and other Cases that have been mentioned And tho' the Law will go as far as it can to expound the Circumstances as a Performance yet a Performance is necessary The Foundation for this Revocation in Equity which the Plaintiffs go upon is this Where there is a deliberate Intent to make a new Settlement of the Estate and a Man goeth as far as he can to make it there Equity shall supply any Defect First I must deny that in this Case the Duke of Albemarle hath done all that he could do for he thought six Witnesses necessary to the Will of 1675 and six Witnesses to the Deed of 1681 and so provides in this Power for Revocation besides other Circumstances and here are only three Witnesses to this last Will. Neither is this a proper Settlement of a Family for it doth not appear that Mr. Monk who is mainly taken care of in this last Will was any kin to the Family at all Nay it should seem the Duke was not spontaneous about it for he would have the Dutchess pay the Counsels Fee as for her Business When he came to execute it it was not a place that he
came to for that purpose but upon quite another Affair He would have put it off to another time he would have avoided it it was done in a hurry and before Witnesses prepared for that very occasion and brought from Newcastle-House and therefore it is not so much his Intent and firm last Purpose On the other hand they oppose this Argument thus That the Duke did at the same time write to my Lord of Bath that his Purposes toward him were unalterable and what his meaning in that should be unless his purpose not to revoke this Deed and Settlement truly I cannot tell he left the Keys of all his Evidences with him when he went away Crofts was ordered to deliver them to the Earl as chiefly concerned if he should miscarry he trusts him with the chief Management of his Affairs directs him to be advised with upon all occasions as he used to do himself before and so is the same still towards him in all respects as ever he was I do not find in any of the Plaintiffs Proofs that there is any Cause shown for altering this Mind of my Lord Duke's if he had not himself declared it so to be unalterable There was no Provocation on the one side or increase of Merit on the other side why he should change from his Kindness so grounded towards the nearest Relation of his Blood to entertain a Stranger to whom he had never a thought of giving any thing before It is hard to think that my Lord of Bath Sir Walter Clarges Mr. Greenville and even the Dutchess her self should continue the same and the Duke should not I find no Evidence of it nor can tell any Reason for it and without Reason I cannot be induced to give my Opinion against a Deed really deliberately intentionably made upon only the single Act of this Will testifying so great and total a Change surely if any such thing had been meant it was very strange he should take no notice of this solemn Will and Deed made before and ask Advice whether it were not sit to revoke or look into it To my thinking the Duke hath in effect declared that this Will in 1687 should be taken for a Will as obtain'd by Surprize for he binds himself by this Proviso only to revoke in such and such away to prevent Surprize We then find there a Will that wants these Circumstances required in the Proviso and then we must take it to be what he intended to fence himself against and nothing doth reconcile the Duke to himself in this matter but that he was apprehensive he should be drawn to do something that was against his Mind aad therefore he doth fence himself with this Proviso against all such Attempts The Will and the Deed do both provide largely for the Dutchess but whether the Will doth it so liberally as the Deed doth I cannot tell they did talk as if there was 3 or 4000 l. Difference I cannot tell what as to the Value it may be but I am sure in this Will there is no Provision made for my Lord of Bath at all and there is none for Mr. Monk in the Deed or any other thing before this last Will. I must crave leave to differ from the Counsel for the Plaintiff in what they take to be a Ground for a Revocation in Equity that the Duke had forgotten this Deed I am not satisfied that upon that Ground only this Court should relieve against it And my Reason is this Suppose his Intention to revoke do appear it ought to be in such a manner as the Law requires and pursuing such Circumstances as he has put upon himself because here is a voluntary Conveyance on both sides and where there are two voluntary Conveyances he that hath the Advantage at Law ought to keep it And so the Resolution was in Fry and Porter's Case and I take it to be the standing Rule in Equity For what shall turn the Scale shall the Defendant urge any thing of Merit that cannot be in this Case but in the Eye of Law they are both equal under the Consideration of the Court and in pari gradu And indeed if it should be otherwise what would become of Circumstances in Powers of Revocation by which Men shackle and circumscribe themselves with very good Reason at their Creation if the last Will alone shall set aside all It is objected that it was always the Duke's solemn Intent to prevent the dishonourable Descent of his Estate upon his right Heir at Law who sprung from a Regicide and to prevent a Surprize by a sudden surreptitious Will and both these Ends are attained by the solemn deliberate Preparation for his Will and the Disposition of the Estate to Mr. Monk and it is substantially and therefore equitably performed though not strictly legally I think there was a further End in this Deed and that was to settle his Estate upon a Person of Honour nearly related to him in Blood And this Court cannot take it from him without reflecting on this Settlement and upon him that made it and upon him for whom it was made No nor can it be done as I take it without performing the Circumstances required and prescribed for that purpose in the Proviso without which I think this Court ought not to determine that the Intent is performed or that his Mind is changed And if we shall depart from these Limits I cannot tell where we shall stop I can set this as a good Limit here is a voluntary Conveyance on the one side and a voluntary Conveyance on theother side the latter Conveyance must make it out that the Circumstances requisite are performed and if not I think the Law must decide it and there hath been nothing made out by which as I conceive there can be any Advance given in a Court of Equity to determine it otherwise than the Law will I shall speak but very little to the other Head It is objected and ask'd whether there should be no Relief in any Case where there is a Defect in the Execution of the Power I think that would be very hard on the other side and it would be convenient Relief should be given in these Cases First for a Purchaser I speak not now of a Purchaser for a valuable Consideration without notice for that is helped already by the Statute and so where there is any Fraud or the Party is guilty of any Deceit or Falshood whereby a Man is prevented from executing his Power though he never so much intended or desired it But there is no such thing here and the Plaintiffs Counsel were wiser Men than downright to call this Fraud only they stile it Surprized Circumvention I think also it may be fit for this Court to give Relief where there is a foreign Consideration as Consideration for Paiment of Debts or providing for younger Children As where a Man makes a Conveyance or makes a Will and chargeth his Lands over which
of Bath There have been several things insisted upon by the Councel for the Dutchess and Mr. Monk as grounds whereon they would found that Equity which should impeach this Deed of 81. I would mention them as I apprehend they were offered and I will as far as I can avoid being tedious or use unnecessary Repetitions of what has been already said First It has been offered That this Deed was obtained by Fraud and Surprize Secondly If it were Originally fairly obtained yet it was unduely secreted and concealed from the Duke that lie could not come to know the true contents of his Power or if it were not concealed yet it was utterly forgotten by the Duke which was the reason and occasion why sufficient care was not taken to execute the Power as it should have been Next That tho' the power of Revocation was not literally executed yet his intention appearing clearly to dispose of the Estate otherwise it ought to be supported in Equity Then That the Deed of 81. was but Ancillary that was the Phrase to the Will of 75. being agreed to be revok'd by the Will of 87. the Deed must fall with it Another thing was That what the Duke had done amounted to a Revocation Then That here was a General Trust and the Duke remained Owner of the Estate and might charge it as high as he pleased to the utmost value and so being absolute Master of the Estate his subsequent disposition of it by this last Will ought to be made good in Equity There are many things accumulated together and so make the better shew but it is belt to consider them severally if we would know the true weight of them It is true it is charged in the Bill That this Deed was obtained by Fraud and Surprize and that it was concealed from the Duke or forgotten by him and he had an intention to revoke and went as far as he could so that they are sufficiently let into this Matter by what is charged in the Bill But whosoever reads over the Depositions will see that the End they aimed at was to attack the Deeds themselves as false Deeds and not truly executed But that being tryed at Law and the Will and Deeds verified by a Verdict the Counsel have attempted to make use of the same Evidence and read it all or at least the greatest part of it as Evidence of Surprize and Circumvention But I think that ought to be well considered by the Court for we are not to found our Judgment upon that Evidence which if it be to be regarded at all did amount to more than what was insisted upon and which is positively contradicted by the Verdict As to Fraud and Circumvention it must be granted me that they are things not to be presumed It is all denied in the Answer and the Proof must be very clear if it be to be regarded by the Court. Now for this word Surprize it is a word of a general signification so general and so uncertain that it is impossible to fix it A Man is surprized in every rash and indiscreet Action or whatsoever is not done with so much Judgment and Consideration as it ought to be But I suppose the Gentlemen who use that word in this Case mean such Surprize as is attended and accompanied with Fraud and Circumvention Such a Surprize indeed may be a good ground to set aside a Deed so obtained in Equity and hath been so in all times but any other Surprize never was and I hope never will be because it will introduce such a wild Uncertainty in the Decrees and Judgments of the Court as will be of greater consequence than the Relief in any Case will answer for They say This Surprize was made out two ways by Matters that appear in the Deeds themselves and by Circumstances in Proof that arise out of the Deeds As to those Matters that appear in the Deeds themselves they urge First That it is expressed in the Deed of Release that it is made in corroboration of the Will which is misrecited throughout Then That it is imported to be for the confirmation of the Will when in effect it doth fully revoke it because there are no Limitations in the Deed but such as vary from those in the Will Then That it is for securing the Legacies in the Will and yet itself defeats the Will That as to a great part of the Estate the Deed limits it to my Lord of Bath after failure of Issue-male excluding the Daughters whereas in the Will that Limitation is after failure of Issue generally That the Provision in the Deed for the Third Son is ineffectual because the Duke had not power to settle it so That the Power of Revocation is unreasonably fettered and the Covenant whereby the Duke who was then very young is obliged not to revoke the Will is a derogatory and illegal Covenant And the unskilful Phrase and Language of the whole Conveyance must be a Demonstration that Sir William Jones was not imployed in it as is pretended These are the Objections to the Deed it self Now as to the Misrecitals as my Lord Ch. Justice has said they will have no insluence upon the Limitations because the Recitals in a Deed are not made the measure of the Limitations in it Besides as I apprehend here are none of these Misrecitals which are of that nature as to draw on the Duke into a Mistake in the favour of my Lord of Bath For the Recital that the Dutchess had a much greater Estate by the Will than she had before as the Limitation of Dalby and Broughton for Life when it was but during Widowhood this might lead the Duke indeed into a Mistake in favour of the Dutchess as it did and might have induced greater Limitations of the same kind but never to the Advantage of my Lord of Bath who was to come in remainder so that all the inference that can be made from those Misrecitals is only That Sir Tho. Stringer who it is apparent in Proof drew the Deed was a careless Man Then they say the Variation of the Limitations from those in the Will sheweth That it was to revoke the Will and not to confirm it As to that First Such Variation is a Proof That the Duke between the Time of the Will and the Time of the Deed had altered his Mind as to those particulars but to carry it further I see no reason in the World Next it hath been observed That the Words of the Deed which purport the end of it to be for confirming of the Will must plainly in reason infer to the principal design of the Settlement which was to dispose of his Estate to my Lord of Bath and the nearest of his Relations and not to refer to every particular Limitation in the Will and that it doth so confirm the Will as to the main principal Limitation in the Will is plain And it doth appear by the very phraseing of the
Deed that besides the confirming of the Will he did mainly design the settling of his Estate Then let us consider the differences in point of Limitation between the Deed and the Will First They say in the Deed There is an Estate limited to the Duke for Life which is not in the Will that is proper in a Deed but would not have been absurd in a Will which is not to take effect till after his death Then for that Variation in the Limitation to the Dutchess it is not material in point of Value but for duration of the Earl and it was a reasonable thing so to make it for since he did intend to charge his real Estate with great Legacies it had been impossible to have sold any part of it that had been under a Rent-Charge of 6000 l. a Year and therefore it limits Lands of that Value As for the Limitation of Norton Disney which indeed is to the advantage of my Lord of Bath and is the only variation from the Will which is so for with respect to the Essex and Nothern Estates my Lord has but a Remainder after failure of Issue in General but in this it is after failure of Issue Male But then it is to be considered that the Honour would fail upon the Duke's Death without Issue Male and he did intend and desire that the Honour of Duke of Albemarle should come to my Lord of Bath His Father had gone so far in it as to procure a promise of it under the Sign Manual by K. Charles the 2d And at the same time he had an Estate of 15000 l. a Year and then it became him well that such a part of the Estate should go with the Honour As to that Objection that thereby there was no provision made for Daughters it were indeed a very great one if indeed there were no provision at all for them But it means no more than that if he left no Sons there would be an ample provision out of the rest of his Estate for Daughters And so in effect it is upon the Marriage-Settlement and the Will of 87. So that if it be an Argument of Surprize as to the one it is the same as to the other Then for that provision that is made out of Rotherhith and Norton Disney for the third Son it must be admitted that as to my Lord Duke's mind in the matter it would be ineffectual but there can be nothing infer'd from thence but that there was a great neglect of looking into the Settlement But that will be no ground in Equity to relieve against this Deed for if it should be so how many Settlements must we set aside upon Mens setling that over which in part they had no Power of making such disposition because the persons concerned in drawing the Settlement did not take sufficient care in every Particular to pursue the Power he had who makes the Deed. Besides there is the same mistake in the Will of 87 in relation to Potheridge where the Barony for Mr. Monk was to be fixed it being by a Settlement in King Charles the first 's time so setled in Tail that it could not or was not legally to be disposed of by Will Indeed it was said that there were some Articles made with Pride about that matter to carry the Estate according as the Duke should direct But those Articles cannot answer the Objection for they were made three Months after the Will and then they were made with a wrong Person and so signify nothing It has been objected That this Deed pretends to be for securing the Legacies in the Will of 75 but defeats them That is a Mistake in the Objection for it confirms the Will certainly as to the Legacies and doth create a Trust for performing and paying them indeed by a subsequent Act the Will of 87 there may be an Alteration made but that is no Argument against this Settlement itself There was another Observation made and that was That the Power of Revocation was unreasonable especially back'd with such an unreasonable Covenant not to revoke But as to that it is to be considered what the Design of this Settlement was he had made his Will before but he thought himself unsafe under that Disposition he was under apprehension of being applied unto and importuned to dispose of his Estate otherwise than he had a mind it should go therefore he intended this Settlement as a Guard against any Surprize of that kind and that being his Intention if it had been only a general power of Revocation it had been no more than what any Will or subsequent Act done by him would have effected but that had not answered his meaning And so as to the last Covenant in the Deed which they call the Derogatory Clause whereby the Duke covenants not to revoke the Will otherwise than as aforesaid I take it that doth import no more but that as to the preceding part of the Deed he guards himself against Surprize as to the real Estate so he doth here as to the personal Estate And tho' it prove ineffectual at Law that is not material as to the Intention of the Duke The last Observation upon the Deed is the penning it which is an Objection that is to go through the whole Deed but this Objection goes further than the point for which it is alledged for if it prove any thing it proves it to be a false Deed. But for this I do not find it so much as suggested that this Deed was drawn by Sir William Jones my Lord of Bath indeed says that it was left to the Care and Conduct of Sir William Jones but as to what appears he was onely concerned in the Proviso for it is very good reason to believe when he says I approve of this Proviso he did not refer his Opinion to any other part of the Deed. And indeed any one that knew or remember him will think that he concerned himself with no other part but what he set his hand to the approbation of I have taken notice of these Observations as Arguments urged by the Counsel which taken altogether should induce their ground of Equity from a Surprize in obtaining this Deed but when they are severally considered they seem not to be of such weight as is contended for But if the Obligations had been more in number or of greater consequence yet let the Deed be never so ill drawn and the Mistake and Mis-recitals never so many and the differences of Limitations in the Deed from those in the Will never so many too yet if this Deed were really executed by the Party all this will not be a sufficient ground in Equity to set aside this Deed. And the Counsel for the Plaintiff were well aware of this and therefore they go to other Circumstances out of the Deed to shew this Surprize and as far as I can observe the Objections upon this point are these That there is no Proof