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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
B08631 The case of Elizabeth Dutchess of Albemarle, and Christopher Monke Esquire, [brace] appellants. Against John, Earl of Bath, and others respondents 1680 (1680) Wing C911A; ESTC R173516 12,012 6

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Cla●gis Sir Tho. Stringer and the rest of the Duke's Trustees looked on the Appellant Christopher Monke eldest Son of the said Colonel as the person who would have the Duke's Estate in case of his death Which appears by Letters even under the Earl of Bath 's and others of the Trustees Hands recommending it to the Duke on the death of Col. Monke That since his Grace had thought fit to promote that Branch of his Family how remote soever into so great a share of his Favour there should be something done towards the breeding up the Children to make them appear in the World answerable to that figure which his Grace had designed they should one day make in it Such is the one of the Letters signed by the Earl of Bath And divers other Letters there are to the same effect as also from the Duke in Answer directing That the Earl of Bath and Trustees should forthwith send into Holland for the Appellant Christopher and that Care be taken of him to have him well educated That he may as the words of the Letter go receive such improvement as is proper for what I have already designed him and therefore think it convenient that he be put under the Tuition of Mons Faubert and that particular Care be taken to see it done and give me an Account from time to time how he proceeds in his Studies And accordingly the Trustees and particularly the Earl of Bath who took upon him the greatest Trouble thereof agreed for him and a Servant with him to be at Monsieur Faubert's at above 200 l. per annum Expence and the Earl of Bath often visited him there Whereas if this Will of 1687. be not the Real Will and Setlement of the said Duke but that the Deed of 1681. should stand there 's nothing at all given to the Appellant Mr. Monke to make a Figure or bear any Character as the Letters go The Earl of Bath by his Answer The Earl's Answer about Faubert's goes to explain all this and says That Faubert's was the place where the Duke used to breed his Pages to Fencing and Riding and has also proved it by a Witness but he hath not shewed That such Expressions as are in the Letters were usual with the Duke or himself in relation to the Pages viz. What Figures they were to make and what Characters they were to bear one day in the World and how many Pages the Duke did breed with a Servant at such expence and how many Visits the Earl did ever make the Pages as he used to do Mr. Monke and how many of the Pages were to proceed in their Studies there as the Duke directsr Mr. Monke should do And as to the pretended Importunities of the Dutchess to obtain the Last Will it is fully answered The Duke and Dutchess always lived well together Dutchess's pretended Importunities answered neither was it her Interest in any sort to set up Mr. Monke for Col. Monke was much a Stranger in comparison of the Earl of Bath who tells by his Answer how many ways he had obliged her Besides this Deed if Dalby and Broughton had not been since sold setles very near as much Land on her as the Last Will. And the Lord Ch. Just Pollexfen swears he used to be with the Duke in the mornings and that he acted freely and was in a very fit condition to make a Will And Mr. Bowes swears he recommended it to the Duke instead of the use of the Goods for Life to give her the property of them and that he refused As also denyed to give her the Inheritance of that which had been her Fathers Estate at Grindon which shews the litlte influence she had And likewise that the Duke expelled the Will to be good But yet his esteem for her appears in that in the Will produced by the Earl of Bath and in a Will of 1673 and in all his Wills he named her sole Guardian of all his Children if he had any And it is further here to be considered That the Duke had too much Courage to do any thing through fear or importunity and more Honour than so to dissemble either with the Earl or Colonel Monke but the natural construction which saves the Duke's Honour is That in 1675 he might intend some part of his Estate to the Earl of Bath But in 1687 when Colonel Monke 's great credit in the Army had more endeared him to the Duke and he had hopeful Sons and the Eldest Son his Godson and the Duke as by the Will is expressed desiring that the great part of his Estate should continue in his own name really intended it for Mr Monke and his Sons c. and yet was bountiful also to the Earl of Bath 's Son as aforesaid and he might well in so many years alter his intention And as to the Deed in 1681. Now that this Deed must have some way by Surprise Surprixe in Reference to the Deed of 1681. or other undue means have been imposed upon the Duke appears by the circumstances that attend it and from the face of the Deed it self There 's not the least proof offered that the Duke ever gave any directions for it or read or heard one word of it read nor that ever there was any Copy or Counterpart And upon reading thereof it appears in very unusual manner and expressions to labour extreamly to make a shew of a Consideration And then for the Substance thereof It is absolutely inconsistent with it self It recites a Will of the 23d of August 1675 which the Earl of Bath says is the Will the Duke took from him in 1686 and it misrecites several things of it Then it says it is intended thereby to Corroborate and Confirm the Will and yet entirely revokes and contradicts it and limits the Estate to different uses except only the Mannor of Midgham and Tile-Mills which only are to the same uses But then this Devise in which they only agree is written on the Margent of the Will in the Earl of Bath 's own Hand but by what Order or Authority from the Duke doth not appear And here it is also to be noted That the Devise to the Earl of Bath and his Heirs is on the sixth Sheet of this Will of 1675 and that this sixth Sheet of this Will is of a different Paper different Hand-writing and a different Seal from all the rest of the Sheets of the Will The Will of 1675 Further instances of Surprize gave all the Dukes Estate to his own Daughters in case he had any before the Earl or his Sons or Daughters as good reason there was But the Deed of 1681 limits the Estate in Essex and Lancashire c. to the amount of 5000 l. a Year so as the same would go to the Earl of Bath and his Daughters before the Dukes own Daughters Which seemed not Answered in saying that the Duke might expect the Earl would be created
Duke of Albemarle and do it for his support but certainly the Earl's Daughters were not to be Dukes and yet they would by the Deed carry the Estate from the Duke's Daughters Part of the occasion of making the Deed the Earl says by his Pleadings was to make Provision for younger Sons in which his Marriage-Settlement was defective And yet the Lands settled by this Deed of 1681 for such Younger Sons are Redrisse Norton Disney c. which by the Marriage-Settlement were settled on the Duke 's Eldest Son Then the extraordinary nature of the Power of Revocation That it must be done in the presence of six Witnesses and three of them Peers whereby the Duke put himself under great incapacities some times it might be impossible for him to get three Peers as it was in Jamaica And if he had them he was in their power whether they would be Witnesses or no. And thereafter comes the Covenant not to Revoke or alter the Will of 1675 which by that Deed was actually Revoked as aforesaid Nor had the Duke himself any power by the Deed to make Leases and yet all this must be kept from the knowledge of the Duke and so he knew not how exactly to pursue it But the Earl Bath by his Answer The Earl of Bath's Answer about the Ingrossing the Deed and Sir W. Jones to give the greater credit to the Deed says That he knows not who Engrossed it but it was committed all to the Care and Conduct of Sir William Jones and he came to be a Witness to it at Albemarle House and believes Sir William Jones read it to him before it came to be perfected and that the Duke was often with him about it after the time that Sir Tho. Stringer had prepared the Draught but was not to be trusted with the knowledge of the Execution of it Now when the Court observed the strange frame of the Deed and the many Inconsistencies Improprieties and Conitradctions therein They declared That they did not believe that ever Sir William Jones drew the said Deed only was consulted upon the Provisoe which seems not to consist with the Earls Answer which says that the Care and Conduct of the wholewas committed to Sir W. Jones And it now fully appears That Sir William Jones has no hand in the Engrossing thereof but it was done by Thompson at the Earls House as aforesaid And the great Secrecy not only in the obtaining Concealment but concealing thereof appears in that it must not be known to the Duke of Newcastle or any of the Trustees therein nor to Sir Walter Clarges who has an Estate thereby and was the Duke's intimate Friend and near Relation nor to Sir Thomas Stringer who it is said drew the Draught But yet the Earl's Answer confesseth he was not to know of the Execution thereof lest he should tell the Dutchess tho she hath so great an Estate thereby that it was her interest to espouse it and thank the Earl for his great kindness expressed in his Answer by prevailing with the Duke to make her Estate thereby so much better than it was before Then that the Duke with the privity of the Earl of Bath sold Dalby and Broughton to the Lord Jefferys as also Bitchfield before without the least notice either by the Duke or the Earl of any such Deed And made many Leases without fines which he had thereby no power given him to do And also made divers voluntary Conveyances and Grants of Rent Charges of 100 l. per annum to one other voluntary Annuities to his Friends and Servants which would be avoided by the Deed. And all the subsequent acts of the Duke so inconsistent therewith That it is next to impossibility to think that the Duke should have done the same and yet be acquainted with the said Deed. And the Lord Ch. Just Pollexfen and Sir Robert Clayton say that they enquired on the said occasions what settlement the Duke had made and could hear of none but the Marriage-Settlement in 1669. Besides Mr. Courtney says it was under great Injunctions of Secrecy the Earl spoke to him about it And the Earl offers no proof that it was ever seen in the Duke's Custody or delivered to him by the Duke from the time of the first Execution thereof only says the Duke gave it to him in his Bed-chamber and no body present unless some body might be behind the Bed And there is nothing does more clearly prove the Concealment of the Deed from the Duke than his great Care about his last Will in 1687. However Third General Head it is in Equity Revoked though the Power of Revocation be not litterally pursued so as to be a Revocation in strictness at Common Law yet in Equity under these circumstances the said last Will of 1687 ought to be adjudged a Revocation thereof as made pursuant to the intent of that power thereby reserved to the Duke The Witnesses according to the Letter of the Power ought to be six and three of them to be Peers but they need not all be present at the same time nor all to subscribe their names Now though there were only three Witnesses present at first yet there were many more than six to whom the Duke afterwards published it here and in Jamaica So that there wants neither number nor credibility of Witnesses only quality for three of them which 't is hoped will be no objection in this Case when it was not possible when he last published the Will in Jamaica to have it But the Court would not allow this in Jamaica to be a Publication being accidental though it was plain in the proof That the Duke took it then in his hand and told the Witnesses it was his Will and directed the Keys of his strong Box where it was kept to be given to the Dutchess if he dyed And the more accidental it was the more it shewes the Innocency and Sincerity of the Duke's intentions It does appear upon the Face ●●●ching the ●●●t of Trust and by the express words of the Deed that the Estate limited to the Earl is upon this special Trust and Confidence That he shall sell so much of the Lands as shall fully and honestly pay all the Duke 's Just Debts and Legacies and Funeral Charges as much as the Personal Estate comes short in the Payment thereof by his Executors in his said Will mentioned So that according to this very Deed whatsoever Debts the Duke had contracted or should contract though not in the presence of Six Witnesses and tho' they were to the full value of the said Estate the Earl must by the Letter of the Trust sell the Estate to pay the same and so must he have done to satisfie all the Devises and Legacies which the Duke at his pleasure should make or give by any other Will were it not for the Addition of those Five Words viz. In his said Will mentioned Now when one of