Joynt Creditors That there can be no division of the Joynt Estate whereby to charge any part thereof with the private debts of either party and till the Joynt debts are paid and till division be made of the Surplus both parties are alike interessed and every part of the said Joynt Estate that the Commissioners have no power by the Commission to Administer an Oath to the Plaintiffs for proof of their debts they claiming debts from the said Widdows only and the Commission is against Widdows and Berman Joyntly and not severally and therefore cannot admit of the Plaintiffs Creditors This Court declared That the Estate belonging to the Joynt Trade as also the debts due from the same ought to be divided into Moieties and that each Moiety of the Estate ought to be charged in the first place with a Moiety of the said Joint debts and if there be enough to pay all the debts belonging to the Joynt Trade with an Overplus then such Overplus ought to be applied to pay particular debts of each Partner but if sufficient shall not appear to pay all the Joynt debts and if either of the Partners shall pay more than a Moiety of the Joynt debts then such Partner is to come in before the said Commissioners and be admitted as a Creditor for what he shall so pay over and above his Moiety and decreed accordingly Charles Howard contra le Duke de Norfolk al' 34 Car. 2. fo 722. THe Plaintiff by his Bill seeks to have Execution of a Trust of a Term of 200 years of the Barony of Grostock The Case was this The Earl of Arundel the Duke of Norfolks Father by Lease and Release Perpetuities or Entailing a Term for years with Remainders over Anno 1647. setled the Barony of G. and other Lands to himself for life then to the Countess Elizabeth his Wife for life and after her decease there is a Term limited to the Lord Dorchester and other Trustees for 200 years under a Trust to be declared in a deed of the same date with the Release and the Limitation of the Inheritance after the Term of 200 years is first to Henry Howard now Duke of Norfolk and the Heirs Males of his Body then to Mr. Charles Howard the now Plaintiff Brother of the said Henry and so to all his Brothers Successively in Tail Male remainder over Then by the said other Deed the Earl declares the Trust of the Term of 200 years and that deed in the reciting part declares that it was intended the said Term should attend the Inheritance and the profits should go to such persons and in such manner as was therein after limited viz. to Henry Howard now Duke of Norfolk and the Heirs Males of his Body so long as Lord Thomas Lord Maltrevers Eldest Son of the said Earl of Arundell or any Issue Male of his Body should be living but in case he should die without Issue Male in the life-time of Henry Howard not leaving his Wife enseint with a Son or in case after the death of Thomas without Issue Male the Honour of the Earldom of Arundel should descend to Henry Howard then Henry Howard and his Heirs to be excluded of the Trust and then it should be to Charles the Plaintiff and the Heirs Males of his Body remainder in like manner to other Brothers After this the Contingency doth happen for Thomas Duke of Norfolk dies without Issue and the Earldom of Arundel as well as the Dukedom of Norfolk descended to Henry now Duke of Norfolk by Thomas his death without Issue presently upon this the Marquess of Dorchester the Surviving Trustee Assigns the Term to one Marriott he Assigns it to the now Duke of Norfolk and the Duke suffers a Recovery to the use of him and his Heirs and the Plaintiffs Bill is to have execution of the Trust of this Term to the use of himself and his Heirs Males of his Body The Defendants insist That by the Assignment by Marriott to my Lord Duke Henry the Term was Surrendred and quite gone that the Common Recovery which barred the remainders which the other Brothers had would also be a Bar to the Trust of this Term and that the trust of a Term to Henry and the Heirs Males of his Body until by the death of Thomas without Issue the Earldom should descend upon him and after that to Charles and the Heirs Males of his Body was a void Limitation of the remainder to Charles The Plaintiff insists Though the Term by the Survivor is gone and Merged in the Inheritance yet the Trust of that Term remains in Equity That this is not a Term that attends the Inheritance but it s a Term in gross and so not barred by the Recovery and that the Limitation of the remainder in Contingency is good in Law and Relief ought to be had in this Court The Lord Chancellor Nottingham the Case being of great Consequence calls the Judges to his Assistance viz. the Lord Chief Justice Pemberton the Lord Chief Justice North and the Lord Chief Baron Mountague and they made one single point in the case Whether this Contingent Trust of a Term limited to the Plaintiff Charles and the Heirs of his Body upon the dying of Thomas without Issue Male whereby the Honour did descend to Henry be good in point of Creation and Limitation for as for the Recovery if this be not a good Limitation in point of Creation the Recovery will do nothing so that supposeth it to go along with the Inheritance and if this take effect then it will suffer no prejudice by the Recovery And as for the Assignment by Marriott to the Duke if this Court decree it for the Plaintiff then it is a Breach of Trust and then he must answer for it and so must the Duke for it is a Surrender to a person who had notice of the Trust If for the Defendant then it is of no weight So that the whole rests upon the first single point viz. whether it be a good Limitation upon the Contingency to Charles or as they call it Springing Trust a springing Trust And the said three Judges were all of Opinion that it was a void Limitation and that it ought to be Decreed for the Defendant They said Term in gross and a Term attending the Inheritance the difference there is great difference as to the Limitation of Terms that are in gross and Terms that attend the Inheritance as to Terms in Gross they are not capable of Limitation to one after the death of another without Issue but in Termsattendant upon an Inheritance there may be such a Limitation if the Inheritance be so limited and not else Now the Term is capable of a Limitation to Henry and the Heirs Males of his Body and for want of such Issue to Charles and the Heirs Males of his Body because it hath an Inheritance to support it But now to put another limitation upon it that upon the
if he were intituled to a Bill of Revivor he could not revive for Costs there being no Decree inrolled This Court allowed the Defendants Demurrer and dismist the Plaintiffs Bill of Revivor Raymond contra Paroch Buttolphs Aldgate in Com. Midd. 32 Car. 2. fo 517. THe Plaintiff being one of the Kings Waiters in the Port of London Priviledge and yet used the Trade of a Common Brewer and executed his said place by a Deputy The Defendants insist He is not to be exempted from bearing the Office of Overseer of the poor in the Parish The Plaintiff insists That the Kings Officers who serve his Majesty in Relation to his Revenue ought to be exempted from Parish Offices though they executed their places by Deputy and use an other Trade they being still liable to answer any misdemeaner committed by their Deputies and if their Deputies should be absent at any time they are bound to execute the same themselves which often falls out and Presidents of this Nature have often been found and hopes this Court will not take away any the priviledges such Officers ought to enjoy in right of their Offices and that a Supersedeas of priviledge be allowed the Plaintiff and his Writ of priviledge stand The Defendants insist That the Plaintiff driving a Trade of a Common Brewer and getting Money in the Parish he ought to bear the Offices of the Parish notwithstanding his said Office and if any Priviledge were due it ought to be granted by the Court of Exchequer and not by this Court This Court declared The Kings Officer priviledge from Parish Offices tho' he drive a Trade in the Parish That the Kings Officers ought to have the benefit of their priviledge and the execution thereof by a Deputy nor his dealing in another Trade should not in any sort be prejudicial to him he being to answer for any neglect or misdemeanour committed by his Deputy for that it is not reasonable that the Kings Servants or Officers should have nothing else to subsist on Such priviledge grantable out of Chancery as well as Exchequer but their immediate Services or Places under his Majesty and take no other imployment on them and although a priviledge of that nature be grantable in the Exchequer a Writ of priviledge under the great Seal was and ought to be taken in all respects as effectual and therefore allowed the Plaintiff his priviledge Dominus Bruce contra Gape 32 Car. 2. fo 723. THe question in this case is Deed. Will. Revocation whether the Mannour of Mudghill is within the devise of the Duke of Somerset by his Will in August 1657. of the Residue of the Estate unsold for the benefit of his three Daughters and the Lady Bruce his Grand-Child or whether it belongs to the Lady Bruce only as Heir at Law and whether the same be liable and comprehended in the Trust together with other Manours and Lands to Satisfie the 19100 l. Debts only or is subject with the other Lands in the said Deed and Will for Satisfaction of all the debts of the said Duke William The Case is viz. that the Plaintiff the Lady Elizabeth Wife of the Lord Bruce is Grand child and Heir of William late Duke of Somerset and Sister and next Heir of William also late Duke of Somerset who was the only Son of Henry Lord Beauchamp the Eldest Son of William Duke of Somerset the Grandfather which said Duke William the Grandfather did by deed the 13 Nov. 1652. Convey to the Lord Seymour Sir Olando Bridgman c. and their Heirs the Mannour and Lands in Trust for payment of Moneys to the Lord John Seymour and the Lady Jane Seymour Then upon further Trust to pay Debts amounting to 19100 l. and after in Trust for raising 10000 l. for the Lord John Seymour and 6000 l. for the Lady Jane Seymour and Trustees to account yearly to the right and next Heir of the said Duke with a power of Revocation in the said deed as to all but the said 19100 l. debts and that the said Duke William 19th of April 1654. as to a further provision for the payment of the Debts by deed conveyed to the Earl of Winchelsea and the Defendant Gape and others and their Heirs the Lands in Wilts and Somerset worth 30000 l. and sufficient to pay all his Debts to himself for life and after for payment of Annuities and after his death then to the use of the last Trustees and their Heirs upon special Trust that they should lease out the premisses and with the Mony thereby raised and otherwise with the profits pay all such Debts for which the Plaintiff stood ingaged for the said Duke and that the overplus of the said Mony and Profits to be paid and the Lands unsold to be conveyed to the right Heirs of the said Duke wherein was a power reserved in the said Duke by deed or Will to revoke the said Uses or Trust That the said Duke by deed the 20 of April 1654. reciting that the Lord Beauchamp the Eldest Son died since the deed of the 13 of November 1652. and had left only one Son and the Plaintiff Lady Bruce and that the Lady Bruce was left unprovided for and reciting the deed of the 19 of April 1654. made an Additional provision for the payment of his debts which made the Lands the deed of 1652. of a greater value than would satisfie the said Trust and therefore appointed the last Trustees in the deed of 1652. should out of the Money to be raised by Sail of those Land and the profits thereof pay the Plaintiff Elizabeth Lady Bruce 100 l. per Annum till her Age of 17 and after 300 l. per Annum and then after the debts in the deed of 1652. and Portions to the Lord John and Lady Jane Seymour then to pay Elizabeth the the Lady Bruce 6000 l. portion also with power of Revocation That afterwards the said Duke by Will 15 of August 1657. having as aforesaid secured the said 19100 l. debts devised to his Son the Lord John Seymour and the Heirs Males of his Body the said Mannour of Mudghill and because the Lady Ann Beauchamp his Sister in Law had the same as part of her Joynture and the same was Leased out for the life of Pleydall his Will was that till the same fell in possessision to the Lord Seymour the Trustees in the deed of 1652. should pay him maintenance and they to convey to him when they thought fit and by the said Will taking notice of the deed in 1652. and of the 19 of April 1654. and also of his power of Revocation appointed and declared the Trusts in those deeds for his Grandson William Lord Beauchamp and the Plaintiff the Lady Elizabeth Bruce or for the benefit of his Right Heirs should cease and the same was thereby revoked and appointed the Trustees in those deeds to convey the said premisses to the Lady Frances his Wife and the Earl of
of the premisses were accrued to the said Plaintiffs but that by reason of the said Proviso and several Ambiguities in the said Deed it was doubtful to what parts the Plaintiffs Settlement with Proviso not to attempt the impeachment of it Court dirccted a Trial at Law and that the Trial should be no forfeiture the Heirs general were intitled unto so to be protected against the said Proviso and to have the partition of the Lands is the Bill His Lordship declared it was most fit that a Trial at Law be had touching the Plaintiffs Right and Title and that such Action to be brought shall not be taken or construed a breach of the Proviso aforesaid or forfeiture of the Plaintiffs Right and Title to the premisses Smith contra Sallett 24 Car. 2. fo 382. THe Bill is to have an Issue directed by this Court to try whether the Fines of the Copyholders due to the Lord of the Mannor were certain or arbitrary The Defendant insisted Fines of Copyholder whether certain or arbitrary it having been tried at Law the Court would not relieve the Plaintiff other than for the preservation of Witnesses That there had been several Trials already and Verdicts have passed for a Fine certain and particularly one in Ejectment before Mr. Justice Windham and another before the Lord Chief Justice Hales upon a Special Issue directed out of the Exchequer Whether the Fines were certain at 8 d. an Acre and 8 d. a Cottage or not And a Verdict passed on both Trials for a Fine certain This Court declared They could not relieve the Plaintiff in Equity other than for the preservation of Testimony and dismissed the Plaintiffs Bill Lewis contra Lewis al' 24 Car. 2. fo 664. This is on a Case stated viz. THat the Lord St. Will. John and his Trustees demised a Lease on the premisses for 99 years unto the Defendant Turner if the Plaintiff Alice then Wife of Dr. William Lewis and Theodore Lewis Son of the said Dr. Lewis and one Feilder or either of them should so long live That this Lease was made at the nomination of and in Trust for the said Dr. Lewis That after in July 1666. the Doctor made his Will and as to the premisses devised them to the said Alice for life and after her death then to the said Theodore Lewis to be disposed of as the said Doctor shall appoint them by his Will in writing or Deed and of his Will made the said Alice his Executrix That in March 1667. by a Declaration in writing to which the said Doctor and the Defendant Turner are parties and executed by them both the Trust of the premisses was thus declared viz. for the said Doctor for life afterwards for such person or persons as the said Doctor by his Will or Deed should appoint and in default then for the Executors or Administrators of the said Doctor That in July 1667. the Doctor died without making any other Will or Deed or other Appointmen for the disposing of the premisses That Alice by virtue of the said Will and Deed entred and possessed the premisses That it appears also in the Case Parol Declaration of ones Intent not good against a Declaration in writing some Proof was offered touching a Parol Declaration of the said Dr. Lewis his Intention that the Son Theodore should have the benefit of the said Lease but that being by Parol against a Declaration in writing the Court conceived it not material in the Case and that it is also in the Case that the said Theodore claimeth so much of the term as should be behind at the death of the said Alice and that the said Alice claims the whole term as Executrix to the said Dr. Lewis The Court at the first Hearing was assisted with the Mr. Justice Atkyns Trust of a term devised to J.S. and then to J. D. to be disposed of as the Testator should appoint by his Will or Writing He makes a Writing and declares it to himself for life and after to such persons as he should by Will or Deed appoint and for default of that to his Executors and made no other Will or Deed the Executor shall have it who inclined to be of Opinion for the said Theodore and that the said Defendant Turner the Trustee ought to execute the Trust for him But his Lordship differing in Opinion and having since advised upon the Case with Mr. Justice Windham and several other of the Judges who were all clear of Opinion That according to the Declaration in writing the Plaintiff Alice the Executrix is well intituled to the benefit of the said Lease This Court therefore doth decree That Turner the Trustee do execute the trust and convey and assign the said Lease and the remainder of the term therein to the Plaintiff Alice or whom she shall appoint Lance contra Norman 24 Car. 2. fo 233. THe Plaintiff Lance his Suit is Recognizance that the day before the Marriage of the Plaintiff and his Wife the said Plaintiffs Wife was perswaded to enter into a Recognizance of 2000 l. without defezance to the Defendant Norman being the Plaintiffs Wives Brother to which the Plaintiff was not privy or consented which Recognizance the Plaintiff seeks to have set aside and vacated The Defendant Norman insists That the Plaintiff was Suiter to his Sister designing to gain her Estate but she not likely to have Children intended the said Defendant Norman part of her Estate and upon that account gave the said Recognizance and at that time the said Norman was in the Country and no ways knowing of it nor had contrivance in it but the said Plaintiff proving unkind to his Wife and turned her out of doors and parted with her not making any provision for her This Defendant hath put the same in Suit The Plaintiff insisted that his said Wife voluntarily absented from him and took and conveyed awaygreat part of his Estate and hath acted as a most insolent and undutiful Wife and entred into the said Recognizance without his privity This Court being assisted with the Judges was satisfied that the said Recognizance was entred into the very day before Marriage without defezance or the Plaintiffs privity whereby to defraud the Plaintiff and one witness only deposed the Plaintiffs consent to the drawing the said Recognizance who hath an Assignment of the same to himself The Court decreed the said Recognizance to be set a side A Recognizance entred into by the Wife the day before Marriage set a side and a perpetual injunction and vacated on the Record thereof and a perpetual injunction is granted against it and this Court proposed on the said Plaintiffs Wives returning back all the Estate which she took and conveyed away that the Plaintiff do allow her 20 l. per Annum which was consented to by the Plaintiff for her separate maintainance Howard Vxor contra Hooker 2 Car. 2. fo 587. BIll is to set aside a
South-hampton and the Earl of Winchelsey and Sir Orlando Bridgman and the said Gape and others and their Heirs upon Trust as to Mudghill as he before had declared and as to the rest of the Mannours and Lands on Trust for payment of all such debts in the said Indentures to be paid and unpaid at his death and for freeing his personal Estate and Executors from the payment thereof and of the Trust in the Deed of 1652 for the Lady Jane Seymour and after these Trusts performed all the Lands unsold and the Reversion thereof be disposed by the Lady Dutchess of Sommerset his Wife and the Trustees by his Will and their Heirs for 21 years from his death to such as the said Lady Dutchess should appoint and in default of such appointment for the raising such sums of Mony for the Plaintiff Elizabeth's portion and maintenance as the Deed of the 20 of April 1654 appoints or in default of such appointment by the Dutchess to go to such Person to whom the Trust of the Inheritance of the premisses after the 21 years is limited by the Will and the conveyance so to be made to the said Dutchess and the other person named in his Will should be upon further Trust that the said Dutchess and the other person should stand seized of the said Lands unsold and the Reversion of such part thereof as should be leased out for lives or years in Trust for William Lord Beauchamp and the Heirs Males of his Body and for want of such Issue forthe benefit of John Lord Seymour for life and after for the benefit of the first and every other Son of his Body and the Heirs Males of their Bodies respectively and for default of such Issue for the benefit of all his Daughters and the Plaintiff the Lady Elizabeth Bruce his Grandchild and all the Daughters of John Lord Seymour and their Heirs equally as Tenants in common and not as Joynt Tenants which Will the said Duke in 1660 ratified by new publishing thereof and all the Trustees in the deed of 1652 being dead except Sir Orlando Bridgman and Gape and the interest in Law being in them by Survivor ship Sir Orlando Bridgman knowing the debts in the deed of 1652 to be paid conveyed all the Lands therein mentioned to the said Dutchess of Sommerset That in 1671 the said William Lord Beauchamp Duke of Sommerset died without Issue whose Heir the Plaintiff the Lady Bruce is and after the Lord John Seymour became Duke of Sommerset and died without Issue by whose death the Plaintiff the Lady Bruce is intituled as Heir to Duke William her Grandfather to the reversion in fee of Mudghill Duke John being only Tenant in Tail thereof and ought to injoy the same it not being liable to pay any debts but is discharged thereof by her Grandfathers Will and not disposed from her by any Act the 19100 l. being all paid So that the questions now before the Court were whether the reversion of Mudghill expectant upon Pleydalls Estate for life as well as the residue of the Estate be liable to all the debts which Duke William owed at his death or only to the 19100 l. debts And secondly Whether the reversion of Mudghill as well as the residue of the Estate after satisfaction of all the debts of Duke William ought to be for the benefit of all Duke Williams Daughters and the Plaintiff Lady Bruce and their Heirs equally or the said reversion to go intirely to the said Lady Bruce as right Heir to Duke William As to the first question the Defendant insisted the said Reversion as well as the other Estate is liable to all the debts for that by the deed of 1652. Mudghill was conveyed for raising of Money for the payment of 19100 l. debts and all other debts that he should owe at the time of his death in which deed it is provided that after the said debts be paid he might by any deed or his last Will Revoke all or any of the said Trusts other than as concerning the 19100. debts yet made no Revocation other than by his last Will and therein he Revoked only those Trusts that were for the benefit of the Lord Beauchamp or the Lady Elizabeth Seymour or his own right Heirs and by the said deed the Legal Estate in Mudghill is setled in the Trustees and their Heirs and the Duke had no power to Revoke the uses or Estates till after the 19100 l. was paid and the said Duke directing his Trustees to convey Mudghill to his Son John he did thereby dispose of an equitable interest only of the reversion of Mudghill and the 19100 l. was not paid in the said Dukes life-time but great part remains unpaid and he hath contracted several new debts since the 20th of April 1654. which the Defendant since paid upon the Securities of the said Lands and Mudghill is one of the Mannours conveyed by the deed of 1652. for the payment of 19100 l. and all other the debts he should owe at the time of his death and altho' the same be directed by the last Will of the said Duke to be setled upon the Lord John Seymour and his Heirs Males yet the said Duke by deed of 1652. had no power to revoke the same for the payment of his debts or if he had he did not revoke the same by the said Will but left Mudghill and other the premisses subject to the payment of his debts and the Trustees understanding such to be the Dukes intention never setled Mudghill on the said Lord John Seymour who being lately dead without Issue the same is subjected to the payment of the said Duke Williams debts and when debts are satisfied the overplus of the Moneys and the said Mudghill and all other the premisses ought to be divided according to the intent of the said Dukes Will and by the said Dukes death and the Releases of the said Trustees the interest in Law became vested in Sir Orlando Bridgman and he conveyed Mudghill c. unto the said Dutchess and the said Gape and other the Trustees and their Heirs that they might therewith pay the said debts and though there be sufficient besides Mudghill to pay all the debts yet by the Will upon which this question doth arise that thereby the Trust for the Right Heirs of the said Duke are revoked in express Terms so that by any deed preceding the said Will the Plaintiff the Lady Bruce cannot claim any advantage as Heir the rather for that by the Will it doth appear that Duke William had an equal regard to his own Daughter and the Plaintiff the Lady Bruce his Grandchild and Heir and it cannot be presumed that he would more concern himself for the Welfare of a Grand-daughter than his own Daughters nor was the said Reversion of Mudghill disposed to the Plaintiff by any words in the Will though he did by express words in his Will Revoke all Trusts for the benefit of his Heirs in
Mudghill as well as the other Lands and made other particular provisions further which shews he did not intend that for her for if he had he would not have Revoked the former Trusts as to that by which she would have been intituled as Heir especially when he hath devised all the Surplus of his Estate which involves Mudghill as well as the rest amongst his own three Daughters and her equally nor doth it any where appear that Mudghill is in any sort exempted from Satisfaction of the Creditors nor could it so be by the said deed made by Sir Olando Bridgman who best knew the intention of all Parties in this matter But the Plaintiffs insisted That the said Duke could not intend Mudghill should be conveyed to the uses declared in the Will for that the same is to be conveyed to the said Lord John and the Heirs Males of his Body which is an Estate of Inheritance and he had power by a common Recovery to have bound the remainder and the reversion after the Estate tale is not Assets in Law and therefore cannot be conceived for the payment of his debts and the rather for that he recites deeds in 1652. and April 1654. and directs the Trustees therein to convey all his Lands and Mannours in those deeds to his Dutchess and others as to the Mannour of Mudghill as before he declared by his Will and as to all the rest of the Mannours he declared for the payment of his Debts so that all the rest excludes the Mannours of Mudghill and upon the whole Will it doth appear the Duke intended no Reversion should pass but Reversions after Estates for life or years and therefore this Reversion of Mudghill which is after an Estate Tail doth not pass and if it had been intended to pass he would have limited it to the said Lord John for life without remainder to his first or other Sons in Tail for he had before given him a better Estate in Mudghill to him and the Heirs of his Body and the Trustees were not to settle Mudghill accordingly until the same fell in possession the same being yet for Pleydalls life This Court on reading the several Deeds and Will declared That although the Lord John might possibly have an Estate Tail in him and doct it but he not doing it this Court can take no notice of it though probably he did forbear to do it because Duke William had Signified his desire Reversion after an Estate in Tail subject to Trusts for payment of debts that he should not have an Estate executed to him till it should fall in possession and not before except the Trustees pleased But the case must be taken as it doth appear before the Court that is Mudghill was once liable to the payment of the Debts of Duke William and tho' 't is pretended that the Will hath taken out Mudghill yet the said Will doth only take out an Estate Tail but the Revesion thereof when the same falls in possession is subject to the same Trust and goes in company with the other Reversions and the same is legally conveyed and doth pass in the general words and therefore this Court is of Opinion that the Reversion of Mudghill is part of the unrevoked Estate and that the Lord Bridgman did well when he made the said Conveyance to the Lady Dutchess and that when the 19100. l. and the said other debts are paid to which Mudghill is as well liable as the other Mannours and Lands then the Trustees ought to convey all the premisses in Fourths and decreed accordingly Maddocks contra Wren 32 Car. 2. fo 22. THe question in this Cause is Mortgage Account with what profits the Defendant Wren shall be charged in ease of the Plaintiff who claims the premisses in question by virtue of a second Mortgage and is admitted to a Redemption on payment of what shall appear due to the Defendant Wren who hath the prior Mortgage The Plaintiff insists That the said Mortgage being of a Lease and the Defendant Wren having possession by Attornment of Tenants he ought to have received the profits whereby his Mortgage would have been fully satisfied yet he permitted the other Plaintiff Dorothy Wife of the Plaintiff Maddox the Mortgager to receive the same and therefore the said Wren ought to be charged whereby the Plaintiff may be let in to have Satisfaction of his Debt This Court declared The prior Mortgagee upon Redemption by the second Mortgagee shall be charged with the profits by whom soever Received after the Second Mortgage That the Defendant Wren ought to be charged with the Rent whether received by the Wife or any other Person after the Plaintiffs second Mortgage made but all received by her before the said second Mortgage he ought not to be charged Coles contra Hancock 32 Car. 2. fo 112. THat Benjamin Coles the 11th of June Revocation of a Will 1678. made his Will in writing and thereby gave to and amongst his then Children naming them viz. Benjamin Samuel Mary and Hannah Portions and appointed his Real Estate to be Sold and added to his Personal Estate and made Elizabeth his Wife his Executrix and the Testator being a Melancholy Person and fearing he might forfeit his Estate by making himself away to prevent a forfeiture by deed the 14 of June 1678. made over all his Personal Estate to Trustees first to pay his debts then to pay some Legacies and all the rest of his Estate to be divided amongst the aforesaid four Children That the Testator afterwards died a natural death but before his death had another Child viz. Sarah who is not provided for either by the said Will or Deed. The question is whether the said Will be Revoked by the said Deed of Trust that if it be Revoked then the said Sarah insists to have her share of her Fathers Estate and that he ought to be looked upon as dying Intestate and at least the Personal Estate ought to be distributed by the Act for distributing Intestates Estates and the deed ought not to stand in her way for that great part of the Estate did consist in debts which were made after the said deed and did not pass to or was vested in the said Trustees and that it is against Natural Right and Conscience that her Father leaving a considerable Estate she should have nothing of it This Court on reading the said Deed and Will is of opinion A Deed of Trust no Revocation of a Will that the said deed of Trust is no Revocation of the said Will being not made with intent to revoke the same but only to prevent the forfeiture in a case which never hapned and Decreed the same to be set aside and the Personal Estate to be distributed according to the Will and the remainder to be divided amongst the four Children Benjamin Samuel Mary and Hannah Estate Devised to be sold for increase of his Childrens Portions and a Child
the Mannor of Warter in the County of York whereby he made himself but Tenant for life the Inheritance vesting in the Plaintiff his Eldest Son and Sir Phillip had Issue by his first Wife the Plaintiff his Eldest Son Robert his Second Son and Mary who Marryed the other Plaintiff the Lord Merrion That Sir Phillip in 1647. by Will devised to his said Son Robert a Rent charge of 40 l. per Annum to be issuing out of the said Mannour and afterwards the said Robert died and the Defendant Dorothy his Relict Administred to the said Roberts Personal Estate so the Plaintiffs Bill is to have Distribution of his Personal Estate The Defendant Dorothy insisted That she as Widow of her said late Husband Robert by the Custom of York is Entituled to a Moiety of the said Personal Estate and by the late Act for setling Intestates Estates the said Defendant is Intituled to the other Moiety and insisted That Sir Phillip having Issue by several Venters which are yet alive or their Representatives they are equally intituled with the Plaintiff Stapleton This Court declared a Distribution of the said Personal Estate according to Law to be made amongst the Plaintiff Stapleton and the Child of the Lord Merrion as also the Brothers and Sisters of the said Robert as well as those of the half-Blood as those of the whole Blood and their respective Lineal Representatives who are to be called into the account And as to the point whether the Lord Merrion and his Child have the Right to his Wives share of the Estate a Case is to be made That the Master to whom the account of the Intestates Personal Estate was referred 36 Car. 2. fo 375. hath allowed to the Defendant Dorothy the Administratrix a Moiety of the said Estate of the said Intestates dying without Issue and hath Distributed the other Moiety amongst the Intestates Kindred Brothers and Sisters Whereas by the Custom of the Province of York she is not only to have a clear Moiety of the Personal Estate of her said Husband so dying without Issue after Debts c. but by the late Statute for setling Intestates Estates she is to have a Moiety of the other Moiety The Plaintiff insists That there was no Colour for the Defendant to have a Moiety of the remaining Moiety the said Statute leaving the Custom as it was without Addition Diminution or Inlargement but the Widow was to have only a Moiety and the other Moiety to be Distributed amongst the next of Kin. This Court for the further satisfaction The Custom of the Province of York Certified by the Arch-Bishop ordered the Lord Arch-Bishop of the Province of York to testifie when a man dies Intestate within that Province without Issue after his Debts c. paid how the Residue is to be Distributed by the Custom of the Province The Bishop certified That in such Cases as aforesaid the Widow of the Intestate by the Custom of the Province had usually allotted to her one Moiety of the clear Personal Estate and the other Moiety hath been Distributed amongst the next of Kin to the Intestate and that had been the constant practice of the Ecclesiastical Courts at York The Plaintiff insisted That the Custom of that Province is excepted out of the Act of Parliament and if it were within the Act it ought to have the more favourable construction on their part because it was made in favour of them and not of the Widow and Administratrix who before the said Act usually went away with the whole Estate unless more particular instances prevented This Court declared The Widow by the Custom of the Province of York shall have the Moiety but not another Moiety by the Act of Settlement of Intestates Estates They could not expound the Act to give the Defendant more than a Moiety that being the proportion allotted to her by the Custom and also by the Act if it had not been a Case within the Custom which Custom is confirmed because it appoints the same kind of Distribution with the Act and it would be a strein to give her more than a Moiety part by the Custom and part by the Act and refers to the Masters Report made in this Cause Coventry contra Hall 34 Car. 2. fo 330. THat Sir Thomas Thynn Bill for mean profits Father both of Sir Henry Frenderick Thynn and Sir James Thynn conveyed on Sir Henry Frenderick and his Heirs Males of his Body expectant after the decease of him the said Sir Thomas the Mannour of Hempsford and other Lands and soon after dyed and the said Sir Henry Frederick possessed the said premisses but Sir James Thynn pretending the said Conveyance was Defective Sir Henry Frederick in Oct. 1650. obtained a decree that the said Sir Henry Frederick and the Heirs of his Body should enjoy the said premisses against the said Sir James Thynn and his Heirs according to the intent of the said Settlement That Sir James Thynn insisting That Sir Thomas was but Tenant for life and not Seized in Fee of the premisses having suffered Recoveries so that the Freehold was in the said Sir James or some other for his use by virtue whereof he received the profits which Sir Henry Frederick ought to have received That Sir Henry not being able to recover the said mean profits at Law by reason of the defect in the said Conveyance which is now supplyed and setled by the said decree and Act of Parliament so that the said Sir Henry hath the right to the said profits and writings So the Bill is to be relieved for the same and to have an account thereof The Defendant insisted That there ought to be no account of the mean profits the demand thereof being very old and is grounded on a decree in a former Cause whereby a defect in a Conveyance under which the Plaintiff claims was supplyed and there is no provision in the said decree for mean profits though the Bill originally was such as this Court might have decreed mean profits and when the Decree was made it was not granted nor any farther relief than only possession and the possession hath been so unconstantly in any one person that it is very difficult especially after so long time against an Executor that is no way privy to the accounts of the Testator The Plaintiff insisted That though the demand on the decree is Antient and a prosecution hath been for the same ever since and the Right being determined the Plaintiff ought to have an account of the mean profits as the Consequences of that Right though the Original Bill might pray an account and the decree be silent as to that point This Court declared That considering this case as if there were no Act of Parliament the Plaintiff hath a right to demand an account upon an equity that ariseth on the Marriage Agreement and Settlement made in pursuance thereof notwithstanding the length of time for that the Plaintiff
he died about six Weeks after to whom the Lady is Administratrix The Judges Opinion upon both these Cases WE have heard the Case of Massingberd and Ash Remainders of a Term successively in a Deed of Trust being limited and confined to fall within 21 years are good and no Perpetuities referred to us Argued by Council on both sides both upon the Deed of Trust and upon the Will and are all of Opinion That the whole weight of the Case rests upon the Deed of Trust and that the Will though it have some Clauses in it which if they were substantive of themselves would alter the case yet as it is penned and the Clauses all bound up with relation to the Deed of Trust it does not And we are likewise of Opinion That all the Remainders and Contingencies in the Deed of Trust being limited and confined to fall within the compass of 21 years are good and that therefore the remainder of the Term ought to be decreed to the Plaintiff Sir William Massingberd Febr. 17. 1684. Thomas Jones Creswell Levings J. Charlton T. Street The Lord Keeper declared himself of the same Opinion with the Judges That the Remainder of the said Terms after the death of the said Dame Elizabeth were good Remainders in Law and that the Plaintiff Sir William ought to enjoy the premisses for the remainder of the said Terms accordingly and decreed the same Nodes contra Batle 35 Car. 2. fo 106. THe Bill is That the Defendant may redeem or be fore closed and the Defendant being served with a Subpoena refuseth to appear and sits out all process of Contempt to a Serjeant at Arms retorned and cannot be apprehended The Plaintiff prays the Bill may be taken pro Confesso This Court declared In regard the Defendant hath not appeared The Bill not to be taken pro Confesso if the Defendant hath not appear'd but a Sequestration shall issue out against him this Court could not decree the Bill pro Confesso but ordered a Sequestration against his real and personal Estate until he cleared his Contempt Moor contra Hart 35 Car. 2. fo 60. THat a Treaty of Marriage was had between the Plaintiff and Ann his Wife Marriage Agreement the Defendants Daughter who promised to give with her 4000 l. but when the Defendant perceived them to be mutually ingaged began to recede from his Promise which the Plaintiff finding a Letter was wrote to the Defendant by a Friend of the Plaintiffs desiring him to be plain and ascertain what Portion he would give the Plaintiff with his Daughter and then the Defendant agreed to give 1500 l. down and 500 l. more at his death if she should have Issue and both Sums to be charged on his Estate at Creaton and Wapingham which Agreement was in Writing and signed by the Defendant and he did in Answer to the said former Letter express and declare as much under his Hand and thereupon the Marriage took effect But the Defendant pretended he never made any such Agreement and that the Plaintiff married his Daughter without his Consent but confesseth he received a Letter from one Reeve a Friend of the Plaintiffs wherein he desired the Defendant to be clear and say what he would lay down upon the Nail in marriage with his Daughter to the Plaintiff and what he would secure to be paid at his death and that he sent a Letter to Reeve in Answer wherein he acknowledg'd the Plaintiffs deserts exceeded his ability and with all plainness acquainted him he would give her 1500 l. in present out of his Estate at Creaton and 500 l. more at his death if she should have Issue then living but that afterwards Mr. Reeves sent a Letter in Answer to that whereby the Treaty and Proposals are absolutely waved and the Defendant never further Treated but the Marriage was had without his Consent and without any Agreement in Writing or Settlement and therefore he insists upon the Act for prevention of Frauds and Perjuries To which the Plaintiff insists The last Letter sent by Reeve was no manner of the Treaty or Proposal in the former Letters in Jan. 1680. This Court Letters under ones Hand shall amount to a good Agreement within the Statute of Frauds and Perjuries on reading the several Letters sent by Reeve to the Defendant in the behalf of the Plaintiff and the Defendants Answer thereunto This Court is fully satisfied the Plaintiff upon his Marriage became well intituled to the 1500 l. agreed by the Defendant under his own Hand to be paid to the Plaintiff as his Wives Portion out of his Estate at Creaton and decreed accordingly Bradbury contra Ducem Bucks 36 Car. 2. fo 401. THis Court did declare Interest upon Interest decreed That the Plaintiffs ought to have Interest for their Interest Mony from time to time when it is a stated Sum. Dom ' Pawlet contra Dom ' Pawlet 36 Car. 2. fo 516. This is upon a Case stated viz. THat John Trust for payment of Debts Maintenance of younger Children and raising Portions late Lord Pawlet on Marriage with the Plaintiff the Lady Susanna his second Wife and of her Portion setled a Joynture of 1000 l. per Annum on her and afterwards having 3 Children viz. the Defendant the now Lord Pawlet and Susanna and Vere Pawlet by Deed conveyed Lands to Trustees and their Heirs viz. to the use of the said Lord Pawlet for life charged with Portions for his Daughters by the Lady Essex Pawlet his former Wife and after the death of the said Lord Pawlet to the use of Francis Pawlet and others for 500 years on Trust that they should after the commencement of the 500 years out of the Profits or by Leases or other lawful ways out of the premisses allow the now Defendant Maintenance and also sufficient to pay all the late Lord Pawlets debts and maintenance for the younger Children and after that to raise Mony to pay the younger Childrens Portions in such manner and time as the said Lord Pawlet should by any Writing or last Will appoint and in default of such limitation or appointment the Trustees to raise 4000 l. a piece for every younger Son and 4000 l. a piece for every Daughter of the said Lord Pawlet by the Lady Sasanna to be paid at their Ages or day of Marriages if such Portions could conveniently be raised and if not then so soon after as the same could be with this further That every younger Son and Daughter should have Maintenance till Portions paid and after all the said Sums raised the Remainder of the 500 years to be surrendred to whom the immediate Reversion belonged which is now the Defendant That the late Lord Pawlet by Will in 1677. and published at the same time when the said Deed was executed gave to his said two Daughters Susanna and Vere Pawlet 4000 l. for their respective Portions to be paid them as the said Deed directed and made the
of his Real Estate on Trustees and thereby made a provision for the Maintenance of William the younger during his Minority and therefore they opposed the Plaintiff Frances getting Administration of William the Elder The said Plaintiff Frances Whitmore insisted That by the Will of William the Elder there was no joynt devise made to the said William the Son and the Issue Male and Female of the Sisters of William the Father but a several devise to William the Son with Remainder to the Sisters Issue and that the said William the Son having an Interest vested in him by the Will of his Father and being 18 years Old when he died and he having then a power to have proved his Fathers Will the Earls Executorship during his Minority being determined might have spent or given away the said Estate in his life-time he might surely give away the same by his Will which he having done to the Plaintiff Frances she is thereby well Intituled to the same and that the remainder over to Issue Male and Female of the Sisters the Estate being purely personal is absolutely void This Court hearing several Presidents quoted Devisee Infant lived to 18 years and makes his Will and Executors and dies the Executor shall have the Legacy for that an Interest was vested in the Infant declared That by the Will of the Father there was an Interest vested in William the Son and the remainder over to the Issue Male and Female of the Sisters of William the Elder was void and that William the Son living to 18 years and making his Will as aforesaid and the Plaintiff Frances his Executrix she is thereby well intituled to the surplus of the said personal Estate and decreed the same accordingly Whitlock contra Marriot 1 Jac. 2. fo 700. THis Case being upon a Scandalous Answer Defendant ordered to pay the Plaintiff 100 I for putting in a Scandalous Answer His Lordship declared the said Answer to be very Scandalous and Impertinent and that the expressions taken by the Defendant to the Masters Report were not only more scandalous but also Malicious and that it appearing that Ryley the Defendants Solicitor had put Mr. Lynn a Councellors Hand to the Exceptions without his Knowledge This Court Ordered the said Ryley to be taken into Custody of the Messenger and declared the Answer and Exceptions were not pertinent to the Cause but meerly to defame the Plaintiff His Lordship Ordered the Defendant Marriot to pay to the Plaintiff 100 l. for his Reparation and Costs for the abuse and scandal aforesaid and the said Ryley to pay 20 l. and to stand committed to the Prison of the Fleet till payment thereof be made Ash contra Rogle and the Dean and Chapter of St. Pauls 1 Jac. 2. fo 154. THis Case is upon a Demurrer Bill to enforce the Lord of a Mannour to receive a Petition in nature of a Writ of false Judgment to Reverse a common Recovery demurred to and the demurrer allowed the Plaintiffs Bill is to inforce the Defendant the Lord of the Mannour of Barnes in Surrey to receive the Plaintiffs Petition or Bill in the Nature of a Writ of false Judgment to Reverse a Common Recovery suffered of some Copyhold Lands in the Mannour by Susan Râ—gle Widow which the Defendant Râ—gle holds under the said Recovery the Bill setting forth that Katherine Ferrers by the Will of her Husband or by some other good Conveyance was seized in Fee of Free and Copyhold Lands in Barnes formerly her said Husbands in Trust to Convey 200 l. a year thereof upon William Ferrers her Eldest Son and the said Susan his then Wife and Heirs Males of the Body of William Remainder in Tail to Thomas Ferrers the Plaintiffs Father second Son of Katherine and the Heirs of his Body Edward being obliged by Articles upon Susans Marriage with his Son William to settle Lands of that value on Susan for her Joynture That Katherine on that Trust in 1642. surrendred the premisses to the value of 100 l. per Annum to the use of the said William and Susan and the Heirs of their two Bodies begotten remainder to the Right Heirs of William which was a Breach of the Trust in Katherine in limiting an Estate Tail to Susan when it should have been but an Estate for life That William died before the Admittance leaving Issue only his Son William and in 1652. Susan surrendred to one Mitchell against whom the Common Recovery in question was then obtained wherein one Walter was Demandant the said Mitchell Tenant and Susan Vouchee to the use of her self the said Susan for life the Remainder to William Ferrers and the Heirs of his Body the Remainder to the Right Heirs of the Survivor of them the said Susan and William her Son That William the Son died soon after and Susan died in 1684. and the Plaintiffs Father Thomas being dead without Issue Male in case the Common Recovery had not been suffered the premisses would have come to the Plaintiff being the youngest Daughter to her Father as Couzen and Heir both of William Ferrers the Father and William the Son the premisses being Burrough-English and so the Plaintiff was well Intituled to prosecute the Lord of the Mannour in the Nature of a Writ of False Judgment to Reverse the said Recovery wherein there are manifest Errors and Defaults but the said Lord refuses to receive the said Petition and combine with the Defendant Rogle who is Son and Heir of the said Susan by a second Husband who pretends that his Mother Susan surviving her Son William Ferrers the premisses are discended to him by virtue of the use of the said Recovery limited to the Right Heirs of the Survivor of Susan and her Son William so the Plaintiffs Bill is to examine the defects of the said Recovery The Defendants demur for that the Relief sought by the Bill is of a strange and unpresidented Nature being to avoid and reverse a Common Recovery had in the said Mannour 30 years ago and that upon a bare Suggestion generally that the Recovery is erroneous without instancing wherein which may be said in any case The Master of the Rolls declared That as that part of the Bill which seeks to impeach or reverse the said Recovery for any errours or defects therein or compel the said Lord to receive any Petition for reversal thereof or any ways to impeach the same his Honour declared That this Court being the proper Court to supply the defects in Common Assurances and rather to support than to assist the avoiding or defeating of them and there being no presidents of such a Bill as this is he thought not fit to admit of this nor to introduce so dangerous a president whereby a multitude of Settlements and Estates depending on Common Recoveries suffered in Copyhold Courts for valuable Considerations would be avoided and defeated through the negligence or unskilfulness of Clerks and therefore conceived the said Common Recovery ought
not to be shaken yet nevertheless the Case being new and great referred it to the Opinion and Determination of the Lord Chancellor His Lordship held the Demurrer good and Order to stand Skinner contra Kilby 2 Jac. 2. fo 72. THe Bill is to have the benefit of a Bequest by the Will of Robert Kilby The Will being viz. Will. If my Son Richard Kilby should behave himself towardly and undertake the payment of my debts and Legacies then he to have all my Lands in Tredington The Son Devisee of Lands upon good behaviour for his mis-behaviour decreedagainst him if he behave himself otherwise or to neglect to pay my debts and Legacies as aforesaid then he to have but 5 s. and left it to the direction of his Executrix Jane Kilby the Defendants Mother and also Mother of the said Richard Kilby the Plaintiffs Father That the said Richard waving the said Devise made to him and neglecting the payment of his said Fathers debts and Legacies the said Jane undertok and paid the same being intituled by the said Will and by her Will Bequeathed to the said Defendant the premisses This Court upon reading the said Will of Robert Kilby the Testator which being as is aforesaid declared that according to the said Will the said Jane was well intituled to the premisses and that the Defendant ought to enjoy the same and could not relieve the Plaintiff but dismiss the Bill Nayler contra Strode 2 Jac. 2. fo 473. THe Surrender of a Copyhold Estate by an Infant of 4 or 5 years of Age allowed of by this Court Surrender of a Copyhold by an Infant of 5 years of Age. Yet the Lord of the Mannor insisted he never heard of any admittance in that Mannor at such an Age. Cloberry contra Lymonds 2 Jac. 2. fo 1069. LAnds extended in 1 Car. 1. and held in Extent and a Bill exhibited to redeem and being not redeemed the Bill dismist in 16 Car. Upon the buying the Equity of Redemption of Lands in Extent Account decreed from the time of the purchase 1. and afterwards he who had the Extent by virtue of the said dismission sold the said premisses to the Defendant But the Plaintiff having since bought the Equity of Redemption seeks a Redemption This Court notwithstanding the dismission and length of time ordered an account from the time of the Purchase but no account from any time before but the profits to go against the Interest to that time Newte contra Foot 2 Jac. 2. fo 695. THe Defendant insists Depositions suppressed because the Sollicitors Clerk in the Cause did write as a Clerk in the Execution of the Commission That the Depositions in this Cause are irregulerly taken and ought to be suppressed for that Mr. Samuel Vnderwood who was Clerk to Mr. Edward Gibbon Sollicitor for the Plaintiff in this Cause did write as Clerk in Execution of the said Commission under the said Commissioners and the said Vnderwood confessed the same and solicited the Matter for which Reasons the Defendants Commissioners refused to joyn in the Execution of the said Commission it being of great mischief for Solicitors or their Clerks to be privy to the taking of Depositions in such Causes as they Solicite This Court was well satisfied that the said Depositions were for the Reasons aforesaid irregularly taken and doth order that the same be hereby suppressed and that the Six Clerks Certificate for the regular taking of the Depositions be discharged Griffith al' contra Jones al' 2 Jac. 2. fo 353. THat Peter Griffith being seised in Fee of Lands Will. and possest of a personal Estate of 20000 l. in 1681. by his Will devised to his Brother the Plaintiff 200 l. to the Plaintiff Shonnet Price and Dorothy Parry the Daughters of his Sister Shonnet 150 l. apeice c. and to the Sons and Daughters of his Brother and Sisters not mentioned by name in his Will 10000 l. equally between them which said Legacy doth belong to the Plaintiffs John Lloyd and Alice Williams being the only Nephew and Neece not named in the Will and the overplus of his Estate he obliged the Executors should pay and and distribute amongst his Brothers and Sisters Children and Grandchildren and the rest of his poor Kindred according to his Executors discretions and the Plaintiff claims the overplus of the said Estate as being all the Brothers and Sisters Children and Grandchildren of the Testator and poor Kindred that can take by the Will The Defendants the Executors insisted That they conceive the distributing and apportioning the said surplus is left to them by the express words of the Will and that they ought to distinguish the Grandchildren of the Testators Brothers and Sisters whose Fathers and Mothers were dead before the Testator and had no particular Legacies by the Will and consider the Condition and number of Children of the said Kindred and give most to those that most want and conceived that such of the Plaintiffs as have particular Legacies ought to have but a small one if any part of the surplus and the Defendants crave the directions of this Court how far the words Poor Kindred shall Extend to what Degree of Relation This Court decreed Legacies to Poor Kindred how far to be extended That the surplus of the said Estate be distributed to and amongst the Testators Brothers and Sisters Children and Grandchildren and as to the rest of the poor Kindred according to the Act of Parliament for distributing Intestates Estates and no further and to be distributed in such shares and propotions as the Executors in their discretions should think fit and whereas there are debts owing to the Testators Estate and the debtors poor but propose to pay as far as they are able This Court decreed Poor Debtors to the Testator who left a great Estate the Executors left at liberty to compound any debt That the Executors be at liberty to compound any debt owing to the said Estate if they should think fit Creditors on Judgments and Bonds decreed Creditors on Judgment and Bonds decreed to redeem Mortgages to redeem Mortgages towards satisfaction of their debts fo 843. Bernry contra Pitt 2 Jac. 2. fo 373. THe Bill is That the Plaintiffs Father being only Tenant for life of a real Estate which after his death would come to the Plaintiff and the Plaintiffs Father allowing the Plaintiff but a small subsistance and the Plaintiff borrowed of the Defendant 1000 l. in 1675 and entred into Judgment of 5000 l. Defezanced for the payment of 2500 l. after the Plaintiffs Fathers death which hapned in 1679. The Defendant insists That he lent the Plaintiff 1000 l for which the Plaintiff gave Bond and Warrant of Attorny to confess Judgment to the Defendant of 5000 l. which was Defezanced that in case the Plaintiff should out-live his Father and in one Month after his Fathers death pay the Defendant 2500 l. and if the Plaintiff
the same that she shall release the 2000 l. per Annum within Three years after his death or else that Devise to be void The Remainder of his Lands in Berks to Sir Walter Clergyes pur vie and after in Tail Male Remainder to his Cousin Henry Monk in Tail Male Remainder to his own Right Heirs To Bevile Greenvile Son to the Earl of Bath his Freehold Lands in Surrey and Southampton for life and then in Tail Male Remainder to his Cousin Tho. Monck pur vie and then in Tail Male Remainder to his Cousin Henry Monck in Tail Male Remainder to his own right Heirs His Lands in Devon to Colonel Thomas Monck for life and then in Tail Male Remainder to his Cousin Henry Monck in Tail Male remainder to his own right Heirs All his Lands in Ireland to his Cousin Henry Monck in Tail Male with Remainder to his own right Heirs Provided That if he have any Issue all devises of any Sums of Mony except for his Funeral his Father's Monument Alms-houses and Legacies to his Executors shall be void and if he leave any Issue the premisses devised to Sir Walter Clergyes Mr. Greenvile Thomas and Henry Monck and their Issue shall go to his Issue viz. to his Sons successively in Tail Male if Daughters in Tail with Remainders to the said persons as before Provided If he leave Issue Male he deviseth to his Wife as an Additional Joynture to her Rent charge Lands in Devon and Essex for her life and makes the Dutchess during her life and in case of her death the Dutchess of Newcastle Guardians of his Children he shall have And in case it happen that Colonel Thomas Monck or any Heirs males of his Body shall live to come and be in possession of the premisses devised to him he desires they will live at Potheridge the Ancient Seat of the Family and desires his Majesty to grant them the Title of Baron Monck of Potheridge that it may remain in the Family in Memory of his Father and himself and his Service his Father had the Honour to do the Crown in the Restauration and makes the Duke of Newcastle Lord Cheney Jarvis Peirpoint Sir Walter Clergyes Sir Thomas Stringer Henry Pollexfen Esq and others Executors That the Duke gave direction to Henry Pollexfen Esq to make this Will and when drawn was fully approved of by the Duke upon mature deliberation Which Will being in Three parts he carefully lock'd up and after leaving Two parts of his Will to two persons and kept the Third he went to Jamaica That the Duke when in Jamaica heard Colonel Thomas Monck was dead in Holland sent to the Earl of Bathe Sir Tho. Siringer and others to send over for Chripher Monck the Colonels eldest Son to Educate him so as to fit him to bear the Character of one to whom he intended the greatest part of his Estate if he died without Issue In September 1688. the Duke sickned in Jamaica and there again published his said Will and declared that if he died the Box and Will should be delivered to the Dutchess and died in October following That the Dutchess at her Return from Jamaica found that the Earl of Bathe set up another Will dated 3. Aug. 1675. whereby the Remainder of the greatest part of the Estate was given to the Earl of Bathe and his Heirs and likewise a Settlement by way of Lease and Release in corroboration of that Will by which he seeks to avoid and frustrate the Will of 1687. That the Duke sent to the Earl of Bathe for the Will of 1675. if any such to have it delivered to him that he might make another Will That the Will of 1687. was Sealed at Sir Robert Claytons the same day after other Writings had been by him sealed to the Lord Chancellor Jeffreys of some Lands sold to him and that the Dutchess nor any of her Relations ever knew or heard of the said Deeds till after the Dukes death nor known to Sir Thomas Stringer who was the Dukes standing Councel and the Plaintiffs farther insist if there were such Deed yet it ought not to avoid or impeach the said last Will though the power of Revoking the same was not literally pursued yet the same in Equity ought to be taken as a Revocation and the rather for that at the making of the Will the Duke remained owner of the Estate and he lookt upon himself so to be for that he had since the said pretended Deeds sold some part of the Estate to Chancellor Jefferies without any Revocation and the Earl of Bath paid no valuable Consideration and that he ought to be protected in the enjoyment of the personal Estate and the Specifick Legacies devised to her in the Will of 1687. tho' the Will of 75. if any such be was intended by the Duke principally to hinder the discent to his next Heir and the Deeds if such there be were for the same purpose and that tho' the Deed recites to confirm the last Will of 75. yet does in several places controul it and alter it whereby and by the extraordinary strange and unprecedented Declarations Provisoes and Covenants therein the Plaintiff believes the Deeds were never executed by the Duke or if so that he was surprised therein and pray Relief in the premisses To this the Defendant makes Answer Answer and sets forth the Will of 1675. whereby the greatest part of the whole Estate was given to the Earl and his Heirs and sets forth the Considerations of his so doing as Antient Kindred and Esteem between Duke George and the Earl of Bath and several Services and good Offices that he had done the Family and likewise sets forth that being well satisfied with such his disposition of his Estate and finding that he had been often importuned to alter the same and fearing lest the repeated Practises and Arts attempted against such his Disposition might some time or other surprise him into a Compliance Consulted with Sir William Jones and other his Councel how to Obviate such practises and to settle his Estate in such manner as that it might not be avoided although for his ease he should at any time seem to yield to the Sollicitations of his near Relations whereupon in Anno 1681. the Duke makes a Settlement wherein he begins That for the assuring of the Honour Manours c. upon a Person of Honour c. and for the Corroborating and Confirming the said Will of 75. and to the end that no pretended last Will should be set up by any Person whatsoever and for the Natural Affection that he beareth to the Earl of Bath c. grants by Lease and Release several Mannors Lands and Tenements c. some in Possession and some in Remainder upon the Earl of Bath in Fee and so to Walter Clergies c. in which Deed there was this Proviso Proviso That if the Duke shall at any time during his life be minded to make void the said Indenture
in Equity to be an Evidence against the Deed so as there appears no Evidence that the Earl surprized the Duke or that the Duke was surprized As to the third point touching the Circumstances and Conditions of the Persons The Earl was a near Relation and had done many kindnesses to the Duke and his Family and was especially intrusted by him and though the other Persons that claim by the Will of 1687. may be of Relation to him yet he that hath the best Title hath the right And so it is in the Case of Persons where both claim under two voluntary Conveyances As to the fourth and last point touching the Circumstances the Duke was in when the Will was made the Duke when he made the Will was under a Restraint by the Deed of 1681. for his power was executed and the Duke had restrained himself And the Court of Equity hath no power to examine into the Reasons and Considerations for doing it and there may be Reasons for a Wise Man to Restrain himself for he may not know what surprize may be put upon him and as there may be reason for it so it shall be presumed there was good reason Further there is no Evidence of an Intention in the Duke to execute the power for he had an opportunity to have done it and because a Man may one way dispose of his Estate that therefore he may do it any way is strange and if that may be done it will overthrow all the Conveyances that are made They on the other side pretend the Duke had forgotten the Deed. It was made but in 1681. and well attested by Credible Witnesses and if he had forgotten it his Councel had an Abstract of the Deed and because a Man had forgot a Deed that ought not to be a cause in a Court of Equity to set that Deed aside for Memory may fail but a Deed is Permanent so there ought to be no relief against the Earl and those that claim by the Deed of 1681. Lord Keeper There be three Suits in this Court the Dutchess her first Eill is to set aside the Deed of 1681. And the second Bill by the Moncks much to the same effect and on the same Evidence And the third Bill by the Earl complaining of the Will of 1687. On the hearing of the Causes the 8th day of July 1691. before the then Lords Commissioners and on a Trial directed touching the Validity of the said Deed of 1681. there was a Verdict for the Deed and this Verdict hath not been stirred The Cause comes now to be heard on the Equity reserved on the whole matter I declare the Deed doth stand Unrevoked at Law and the Defendant the Earl of Bathe is well intituled under that Deed for here are no Creditors nor Purchasers or any Children to be provided for and the benefit that comes to the Earl is the Essex and the Northern Estate The Court did declare that there is not any sufficient matter in Equity appears to set aside the Deed therefore dismist the Bill of the Earl of Mountague and Christopher Monk so far as they seek relief to set aside the said Deed of 1681. and as to the other matters Equity to be reserved THE TABLE A UPon the Buying the Equity of Redemption of Lands in Extent Account decreed from the time of the purchase p. 392 Bond to perform a Marriage Agreement pleaded in bar of other Debts 103 Letters under ones Hand shall amount to a good Agreement within the Statute of Frauds and Perjuries 286 Mony Agreed upon Marriage to be laid out in Land shall be applied as the Land should have been had it been purchased 409 Annuity not being demanded in 40 years time conceived to be a Trust 221 The Defendant ordered to pay the Plaintiff 100 l. for putting in a Scandalous Answer 386 Bill to discover Assets Lands decreed to be sold to supply the Personal Estate 99 Legatees to refund to make up Assets 137 Lands purchased in Trust decreed Assets to pay Judgments 143 No resorting back to a defect in Articles after a Conveyance thereupon executed 107 Cross-Bills for setting aside or performing an Award 24 A voluntary Award decreed to be performed 304 B BAil to answer no more than what is exprest in the Ac etiam Billae 55 226 Bankrupts as to Partners 227 228 Joynt Debts 227 228 Separate Creditors 227 228 Relief against Over-reaching Bargains and how 266 270 The Bill not to be taken pro Confesso if the Defendant hath not appeared but a Sequestration shall issue out against him 284 Relief denied against a Bond entred into to a Solicitor to pay 100 l. when a Verdict should be recovered 21 Parson relieved against a Bond given for Resignation 398 C CErtiorari allowed to remove proceedings by English Bill in the Lord Mayorâ—s Court into Chancery 110 Conveyance with power of Revocation on payment of 12 d. at such a place 12 d. was tendred at another place with express declaration to revoke the Deed 74 Vide Revocation Plaintiff two days before the Commission for Examination of Witnesses was arrested by the Defendant and in Execution ordered to be discharged and the Defendant to pay Costs and be at the charge of a New Commission 22 Covenant to purchase so much Lands per Annum value 273 Voluntary Conveyance tho' a provision for younger Children not to prevent satisfaction of subsequent Judgments 265 Copyholder not to be admitted by Letter of Attorney 56 Fines of Copyholders whether certain or arbitrary it having been tried at Law the Court would not relieve the Plaintiff other than for the preservation of Witnesses 76 Of renewing Copies upon reasonable Fines 135 Vpon a Contract for Copyhold Estate and Purchase Mony paid the Bargainor dies before Surrender his Heir decreed to surrender 218 Surrender of Copyhold Land by Infant of 5 years Old 392 Costs from the time of their being Taxed shall carry Interest and shall Charge and be recovered out of the Assets 247 Where Costs to be paid or not 172 Bill for Creditors to take their proportionable shares but their Debts having been paid to them and Releases given dismist 218 D THe Court of Chancery will not try or ascertain Damages recovered at Law 63 Copies of Depositions not to be recorded or exemplified 36 Depositions suppressed and why 393 Blanks filled up after the sealing and execution of a Deed yet good 410 Distribution according to the Act for the better settlement of Intestates Estates 371 372 Such Distributions are made in Chancery as well as in the Ecclesiastical Courts 373 374 375 A 1000 l. to be raised amongst 5 Children one dies before Distribution the Survivors shall have the Share and not the Devisee of him that is dead 150 Decree in Chancery as effectual to charge the person as an Execution at Law 193 Executory Devises vide Perpetuities Term devised to B. and he die without Issue then to C. it s void as to C. 16 200 l.
his debts being 100 l. and says that the 1000 l. was given to be divided as afore said and as the Defendant William should think fit and that Peter dying before any distribution was made to him thereof the Defendant William ought not to distribute the same amongst the other four and no part of it ought to come to the Plaintiff This Court declared That no part of the 1000 l. doth belong to the Plaintiff in Right of the said Peter or otherwise and dismist the Bill Nance contra Coke 29 Car. 2. fo 64. THe Plaintiff seeks Redemption of a Mortgage made the 17th of Jac. 1. Release pleaded against the Redemption of a Mortgage and allowed the Defendant pleaded a Release of the Mortgagors Interest in Anno 1620. This Court after so long time and such Release could not admit the Plaintiff to Redeem though the premisses were Mortgaged for 376 l. and worth now to be sold 1500 l. Burgrave contra Whitwick al' 29 Car. 2. fo 173. THat George Whitwick deceased Will. having Issue George his only Son and Elizabeth and Martha the Wife of the Defendant Curtis by Will bequeathed to the said Elizabeth 600 l. to be paid unto her as therein after is expressed and to the said Martha 600 l. in like manner and gave the residue of his Personal Estate to the said George his Son to be employed as should be afterwards expressed in his Will and also gave to his said Son and his Heirs all Lands whatsoever and Willed That if either of his said Children should dye in their Minority that the surviving should be Heirs to the deceased in equal portions but if all should die without Issue then he gave his Lands to George the Son of Humfrey Whitwick with Remainders over and ordered the said Portions in convenient time to be laid out in Lands for his said Children and till Lands purchased the Executors to retain the Mony so long as the Overseers should see good at 5 l. per Cent. and made the Defendant Humfrey Whitwick Executor That George the Son died Intestate under Age unmarried that no Land hath been purchased by the Executor That Martha attained 21. and received her Portion and also the Moiety of the residue of the Personal Estate bequeathed to George the Son but refuses to pay Elizabeth her 600 l. and Moiety of the said residue of the Personal Estate she being yet a Minor under 21. yet she is married to the other Plaintiff Burgrave who can give a Discharge The Defendant insiststs According to the meaning of the Will he ought not to pay Elizabeth till the Age of 21 years for in case she die before the said Martha ought to have the other Moiety of the residue of the Personal Estate and he is advised there is a possibility of Survivorship of the Plaintiff Elizabeths Portion and Moiety of the residuary of the Personal Estate and that if he should pay it to the said Elizabeth and she should die before 21 the Defendant Martha may compel him to pay it again But the Plaintiff insists That the Moiety of the residuary Personal Estate devised to the said George not being laid out in Lands falls to the Plaintiff within the words of that Clause in the Will that gives the residue by equal portions to the surviving and so no further Survivorship intended This Court was of Opinion Residuary part of the Personal Estate not subject to any contingency of Survivorship but the Interest presently vested and declared the residuary part of the Personal Estate is not subject to any contingency of Survivorship but that the Interest of that presently vested in the Plaintiff upon the death of the said George the Son and ordered the Defendant the Executor to pay one Moiety of the residuary Personal Estate and in case Elizabeth die before 21 then the 600 l. to be paid to Martha which in the mean time is to be kept in the Defendants hands Morgan contra Scudamore 29 Car. 2. fo 658. THe Plaintiffs being Customary Tenants of the Mannor Renewing Copies upon reasonable Fines in which Mannor the Tenants hold Estates by Copy to them and their Heirs by the words Sibi Suis for 99 years yielding a Rent paying a Herriot and doing of Suit and Service c. And by the Custom of the said Mannor the Lords upon Expiration of every Estate ought to renew upon reasonable Fines and which said Estates by the Custom of the Mannour do descend from Heir to Heir and their Estates to be renewed for reasonable Fines they being expired which the Lords of the Mannor refuse demanding more than the Fee for a Fine whereas two years value was as much as ever was or ought to be given or demanded The Defendant the Lord of the said Mannor insists that there was such a Custom to renew for 99 years but the Fines always at the will of the Lord and such as the Plaintiffs could agree with him for there being no benefit to come to the Lord during the 99 years so the question is whether the Lord shall be at liberty to set what Fine he please or be restreined therein by this Court it appearing that the Fines are Arbitrary The Plaintiffs insist that though the Fines are Arbitrary yet the same are by Law supposed to be reasonable and that in some Cases the Law had adjudged above two years value to be an unreasonable Fine and the Defendant had demanded 10 and 12 years value for a Fine which is very extravagant and the will of the Lord in this Case ought to be limited The Defendant insists that the Plaintiffs Estates and Terms for 99 years expired many years before the Bill Exhibited some of them 30 and others 11 or 12 years since in the life-time of the Defendants Father and some of the Plaintiffs Estates have been granted to others and Fines levied thereon and that the Tenants of the said Mannor do not during the 99 years pay any Fines upon death or alteration so nothing is due to the Lord for 99 years together so that the Defendant insists nine or ten years purchase is a reasonable Custom This Court declared The Lord of a Mannor limited to two years value for a Fine the will of the Lord ought to be limited and that the Plaintiffs onpayment of two years value shall be admitted to their said Estates and hold the same against the Defendant and all claiming under him and that the Plaintiffs shall renew such Estates within one year after the Expiration of their Term in case they be of Age Tenants Decree to renew within one year after the Leases expired or within the four Seas at such time or otherwise within one year after such respective Tenant shall attain the Age of 21 or return from beyond the Seas or else such Tenant shall be for ever foreclosed of any help or benefit and and then the Lord is at liberty to dispose thereof Warwick contra
Cutler 30 Car. 2. fo 285. THe Testator deviseth Lands to be held by his Executors Will. Lands devised to be held by Executors till his Son attain 22 years Son dyes before 22 Executors decreed to hold the Lands till the said 22 years till the Testators Son attained 22 years of Age for maintenance of the Executrix and her Children that the said Testators Son dyed before 22 years of Age. This Court decreed the Executrix to hold the Lands against the next Heir until the said Sons Age of 22 years as if the said Son had lived to 22 years and the Plaintiffs debt on Bond to be paid by the next Heir or the reversion to lye liable and charged therewith Jolly contra Wills 30 Car. 2. fo 523. THat Roger Garland Elder Brother Will. Devise of Goods to J. S. for 11 years the remainder over J.S. decreed to deliver the Goods after the 11 years by Will did give unto John Wills the Defendants late Husband the use of all and singular the Goods Plate c. whatsoever then in his House for Term of 11 years from his death and after the 11 years expired he gave the same to his two Nephews Robert and Roger Garland and to his Niece Elizabeth the Plaintiff to be equally divided amongst them and after the 11 years the said Wills was to deliver them to the Plaintiff The Defendant Wills insists that by the bequest of the said Goods for the 11 years she and her Husband to whom she is Executrix are well intituled to the property of them and that the Devisour is void in Law and Equity This Court decreed the Defendants Will to deliver the goods to the Plaintiffs to be divided according to the Will the said 11 years being expired German contra Dom Colston 30 Car. 2. fo 741. THis Court decreed Legatees to refund to make up Assets that in case hereafter any Debt of Sir Joseph Colston should be discovered and recovered against his Executors the Legatees of Sir Joseph Colston are to refund in proportion what they have received for or towards their Legacies to make up Assets for satisfaction thereof Cotton contra Cotton 30 Car. 2. fo 71. 282. THat Nicholas Cotton being seized in Fee of Copyhold Devise and Free hold Lands in Middlesex and Surry of 500 l. per Annum in 1676. dyed without Issue wherebythe same descended to the Plaintiff as Couzen and Heir to the said Nicholas but the Defendant Katherine Cotton pretends that the said Nicholas Cotton made his Will in Writing 25 years since viz. in 1650. having first surrendred the said Copyhold Land to the use of his Will and bequeathed the same to the said Defendant Mrs. Katherine Cotton his Relict and her Heirs but if such Will were the said Nicholas purchased some Lands since which descended to the Plaintiff and that the said Nicholas a little before his death contracted with Sir Thomas Lee and his Trustees for certain Copyhold and other Lands in Sunbury and was to pay 1110 for the same and paid most of the Mony in his Life-time and had possession The Defendant Mrs. Cotton insists that Nicholas Cotton her late Husband deposited in the Hands of the said Sir Thomas Lee or his Trustees 600 l. designing to purchase the said Land in Sunbury but her said Husband Cotton was to have interest for the said Mony and he only rented the said Sunbury Lands and not purchased them because a good Title could not appear but insist that after the death of her Husband she purchased the premisses and paid 320 l more then the 600 l. paid into the said Sir Thomas Lee's Hands and that her Husband by the said Will devised to her all his Real and Personal Estate and made her Executrix This Cause being now heard by Mr. Articles for a purchase and 600 l. paid but interest was paid for it till the Conveyance executed contractor dyes before any conveyance the 600 l. was part of his personal Estate Justice Windham who on reading the Articles between the said Nicholas Cotton and the said Sir Thomas Lee whereby the said Nicholas Contracted with him for the purchase of his Free and Copyhold Lands in Sunbury in Fee simple for 920 l. is of Opinion that the said Nicholas dyed before any Conveyance made by the said Sir Thomas Lee of the said premisses to the said Nicholas and the said Sir Thomas paying Interest for the said 600 l. and the said Nicholas paying Rent for the said premises the said 600 l. at the death of the said Nicholas was part of his personal Estate and as to that 600 l. could not relieve the Plaintiff but difmist the Bill And as to the Morgage made to Perkins by the said Nicholas and the Defendant his Relict it appearing that part of the Morgaged Lands was before that Morgage made Equity of redemption to whom belongeth setled on the said Nicholas and Katherine in Joynture or otherwise so as the same came to her as Survivor this Court is of Opinion that the Equity of Redemption belongs to her as survivor and not to the Plaintiff But as for the other part of the Mortgaged premisses and other matters in the Plaintiffs Bill for which he seeks relief as Heir The question being whether any republication were of the said Nicholas his Will Republication of a Will and whether the same Lands do belong to the Plaintiff as Heir or to the Defendant Katherine as Devisee by force of the said Will. This Court referred that point to a Tryal at Law upon this Issue whether the said Nichelas Cotton did by his said Will devise the said Lands in Shepperton in the Defendants answer mentioned to be purchased by the said Nicholas Cotton of one Rowsell in Fee in 1659. to the said Katherine or not A Tryal at Law having been had upon the point aforesaid a Special Verdict was by the Lord Chief Justice North's direction sound Lands decreed to the Devisee and on a Solemn Argument before all the Judges of the Common Pleas they unanimously gave Judgment for the Defendant that the Lands in question did belong to the Defendant Katherine as Devisee by the said Will. This Court confirmed the Judges Opinion Civil contra Rich 30 Car. 2. fo 338. THat Sir Edwin Rich made his Will whereby he after some Legacies gives and Bequeaths all the residue of his Estate both real and personal to Sir Charles Rich his Heirs and Assigns for ever and maks him Executor of his Will and in his Will says he left his Estate as aforesaid in Trust with him wherewith to reward his Children and Grand-children according to their demerit This Court declared A general Trust in a Will for Children and not a fixed Trust to create a certainty of right That as to Sir Edwins Estate taking the words of the Will of the said Sir Edwin as they were they could amount to no more than a general Trust in Sir