THE ARGUMENTS OF THE LORD-KEEPER THE TWO Lords Chief Justices AND Mr. Baron Powell When They Gave JUDGMENT FOR THE Earl of BATH Die Martis 12 Decemb. 1693. In the Middle-Temple Hall Com. Bathon adv Com. Mountague at al. THIS Day being appointed by the Lord Keeper to hear the Opinions of the two Chief Justices and Mr. Baron Powell who assisted at the hearing of this Cause and to deliver his Lordship 's own Judgment therein Mr. Attorney General moved on the Behalf of the Earl of Mountague c. for the Judgment of the Court and Mr. Baron Powell delivered his Opinion first Mr. Baron Powell The Question in this Case is Whether there be any Ground in Equity to set aside a Deed of Release made in July 1681. for the Settlement of the late Duke of Albemarle's Estate by which my Lord of Bath claims The Validity of this Deed hath been tried at Law upon an Ejectment in the Court of Kings-Bench by Direction of this Court where the Title has been found for the Earl of Bath by the Strength of this Deed so that it must be agreed my Lord of Bath hath a good Title at Law because the Verdict hath found it so and all Parties concerned have hitherto acquiesced under this Verdict This Case comes now back upon the Equity reserved and it is only now to be considered what Matters of Equity have been offered to avoid this Title thus found at Law And those I think may be reduced to five Heads First That this Deed was obtained by Surprize and Circumvention Secondly That it was a concealed and a forgotten Deed. Thirdly That this is a Deed attendant upon a Will and so revocable in its own Nature although it had no Power of Revocation in it Fourthly That there is an implied Trust in this Deed that the Duke might have charged the Estate to the full Value and consequently might well dispose of it in Equity And Fifthly That the great Solemnity and Deliberation used about making the last Will and the publishing that Will do amount to a Revocation in Equity notwithstanding that the Circumstances of the Power are not strictly pursued I am of Opinion in this Case that this Deed having been affirmed by a Verdict upon a Solemn Trial at the Bar at Law none of these Matters are sufficient for to ground a Decree in a Court of Equity to set aside this Deed and I shall give you my Reasons for this Opinion in the same Order I mentioned those Heads in with particular Answers to the particular Objections under each Head 1. It is said this is a Deed that was obtained by Surprize and Circumvention Now I perceive this word Surprize is of a very large and general Extent They say if the Deed be not read to or by the Party that is a Surprize Nay the Mistake of a Counsel that draws the Deed either in Misrecitals or other things that is a Surprize of the Counsel and the Surprize of the Counsel must be interpreted the Surprize of the Client These things have been urged in this Case and I thought fit to mention them for the introducing my Reason against this Head of Argument and it is this That if these things be sufficient to let in a Court of Equity to set aside Deeds found by Verdict to be good in Law then no Man's Property can be safe I hardly know any Surprize that should be sufficient to set aside a Deed after a Verdict unless it be mixed with Fraud and that expresly proved and I know not of any such proved in this Case It is true Duke George by his Will and the Settlement made upon his Son at his Marriage takes no notice of or makes any Provision for the Earl of Bath but that I take it is not to be regarded as any way material at all because he takes no notice in either of them of any Body else but him that was his Heir But I must observe here by the way that there was not only a very near Relation between Duke George and the Earl of Bath but a very intimate Friendship cultivated by mutual Offices of Kindness between them to his Death And I must mention one Particular because to me it seems a clear Answer to this Objection that is His making no Provision for the Earl in the Will or Settlement might be the Occasion why Duke George did make such â—n earnest Application to King Charles the Second that upon Failure of his Issue Male his Majesty would please to bestow the Dukedom upon the Earl and annex Theobalds to it which would then revert to the Crown And that King did often promise he would and afterwards did it solemnly under the Sign Manual But then it is said that after this Duke Christopher made his Will and therein there is no notice taken of any such Disposition of his Estate to the Earl of Bath but that is not I think to be regarded neither because that was a Will only of his Personal Estate and made when he was under Age and could not dispose of his Real Estate Then come we to the Year 1675. when the Will was made to which this Deed has some Relation and by that Will Duke Christopher doth settle a great Part of his Estate upon Failure of Issue of his own Body upon my Lord of Bath There is no Pretence of any Surprize upon the Duke when he made this Will and it is plain then he had an Intention that my Lord of Bath should have a great Share in his Estate if he died without Issue Now then it is to be considered what there is of Proof in this Case of any thing that might be a Ground to conceive why he should alter this Intention between the Years of 1675 and 1681 when this Deed was made There is no Proof of any Misunderstanding between the Duke and the Earl in that Interval but on the contrary that there was a continual Friendship and Intercourse of Kindness between them all the while as doth appear by a continual Succession of Letters and other Correspondences passing between them in those Years one of which I cannot chuse but take notice of because of the Date of it to wit in June 1681. upon my Lord Lansdown's Intention to travel wherein the Duke takes notice of the Interest he had in my Lord of Bath's Family and particularly in his eldest Son as the greatest next to that of the Earl himself And I say I mention this Letter because of the Date that it is so near the very Date of the Deed that it is possible the Date was then made because it was within a Month after that Letter sealed and executed therefore it might well be referr'd to in it Next this appears to be a Deed drawn by the Duke of Albemarle's own Counsel Sir Thomas Stringer for it is proved the Paper-Draught is all of his Son's Hand-writing except the first and last Sheet and all of it interlined
would put the Case upon a like bottom of Presumption the other way and then see what we shall make of it Duke George prevails with King Charles II. to promise to make the Earl of Bath Duke of Albemarle upon his failure of Issue-Male Duke Christopher when he comes of Age doth make a Settlement of his Estate upon the Earl of Bath upon failure of Issue of his Body The Earl of Bath is a Person that doth heap Obligations upon both Dukes and their Family is Assistant to the Duke both in the Purchase and Sale of Albemarle-House is continually the Chief Person concerned in all his Affairs nothing almost is done without him There is no proof of any Misunderstanding or Ground for any between them Nay it was the Report in the Family That if the Duke died without Issue the Earl of Bath was to have the Estate He and Sir Walter Clarges are the Duke's nearest Relations whereas Mr. Monk that I find is not in the Case proved to be at all of Kin to him and so we must not take him to be related without proof but only that the Duke called him Cousin Now after all this that the Duke should make this last Will and give all this Estate to a Stranger for so as to any thing appears in proof and give nothing to the Earl of Bath when by the former Settlement he had given him such hopes of so great a Share this I think is a very Unaccountable thing and I confess I know not how to extricate my self out of the Confusion it causeth in me But I must set the one against the other as to that Objection and leave the Matter in the dark as to the Duke's Honour as I found it though I think I may give a further Answer to this Objection under the Second Head But I must speak something more under this for I would omit nothing that I conceive to be material in the Case There is another thing objected that seems dark in this Case and that is What was the meaning of some Parchments that were ingrossed by Thompson the Summer before the Duke went to Jamaica The Jury have found that this Deed was executed in 81. And if then the other Side would make use of this as insinuating that they were the same Deeds then that is not to be admitted as being expresly against the Verdict But to me it seems That these Deeds in 87. were made upon some design to have them executed then perhaps to settle the Estate upon a firmer foot than it was thought before The Earl of Bath perhaps might be Jealous that the Dutchess might prevail upon the Duke to revoke the former Deed in due form and therefore these Deeds might be prepared absolutely without any power of Revocation and thought he might procure the Duke to seal them so before he went to Jamaica I say that might be the Intention though what was the Design I cannot really tell But admitting that such Writings were prepared with such a design to get the Duke to execute them I know not that all this put together will be a sufficient Ground in Equity to set aside the Deed of 81. For all Designs in gaining of Deeds will not avoid Deeds actually made And that is plain from the Case of Bodmin and Roberts that was one of the Precedents used in this Case which was in short thus Mr. Roberts Son to the late Earl of Radnor married the only Daughter and Child of Bodmin who was so passionately fond of his Daughter that whenever she was in his presence he would break out into great Fits of Passion and weep for Joy to see her Notwithstanding this great fondness of his Daughter one Mr. Wynne took an Opportunity when Mr. Bodmin was under an Arrest and officiously came to Bail him and insinuates into him that his Son-in-Law was the occasion of his being Arrested and thereupon wrought so far upon him as to get him into a private place where he was removed out of his Son and Daughters Knowledge and where he went by a strange Name No one of his Friends had any access to him but Wynne himself and such as he would permit Mr. Roberts made frequent Application to be admitted to him but was refused which was all in proof While he was under this Concealment Wynne tampers with one Barry that had Mr. Bodmin's Will in his Custody and would have had him suppressed that Will whereby he gave his Estate to his Daughter It happens during his being thus secured he falls sick then there is a Will prepared for him to give this Estate away to Wynne from his only Daughter they get three Witnesses to the Execution of it This Will was never read over to him this appears in the proof but they get him to execute it And he dies Hereupon Mr. Roberts exhibits his Bill in this Court to set aside this Will There was proof made of all this Matter that I have opened and this Point of Surprize in obtaining this Will was insisted upon strongly The Lord Chancellor at the Hearing of the Cause was assisted by the Chief Justice Bridgman the Chief Baron Hales and Justice Rainsford But notwithstanding all this proof they could not prevail to set aside this Will in this Court and afterwards when they came into the House of Lords they were of the same Opinion and it ended at last in Relief by the Legislative Power an Act of Parliament This now I take to be much stronger for Relief if any could be than the Case now in Question and if then upon such apparent Surprize and Practice it could not be set aside in Equity sure this cannot where there doth appear no proof at all of any such thing I come then to consider the Second Head of Argument against this Deed that it was a concealed and forgotten Deed. Now that it was concealed from the Dutchess and those that were thought her Agents I agree it so and it is plain it was always intended it should be so But that it was concealed from the Duke I think has no Ground at all The thing they would infer it from is the Evidence of Aleman whose Testimony was read once and again and he says This Deed at the time of the Execution of it was delivered to the Earl of Bath whence they infer he carried it away and kept it concealed from the Duke who forgot it But upon reviewing Aleman's Deposition it can be understood to mean no other but only delivered to that effect as a Deed to his Use but not that it was delivered to him for Custody and carried away by him No truly it seems plain to me from all the Proofs and Circumstances of the Case That this Deed did remain in the Custody of the Duke of Albemarle For that Sir Thomas Stringer a little before the Duke went into Jamaica doth draw an Abstract of it in which the very date is mentioned which could not be drawn from
the Paper-draught where the date is in Blank but must be from the Deed it self And how should he have the Deed to do it by unless it was in the Duke's Custody Besides there is a strong proof That the Will of 75 was in the Earl's Custody once for the Duke sent to him into the Country for it and the Earl brought it up with him for it is plain by the wording and framing of the last Will in 87 my Lord Chief Justice Pollexfen had it in his Custody for comparing the one with the other they run so in the same manner that it is impossible but he that drew the last must have the first by him at the same time How then came this Deed of 1681 and this Will of 1675 into the Custody of the Earl of Bath under the same Cover with the Seal of the Duke of Albemarle's Coat of Arms on it for so it was produced first by the Earl of Bath after the notice of the Duke's Death in Jamaica This cannot be imagined how it could be any otherwise than as the Earl of Bath says in his Answer that they were delivered so to him by the Duke a little before his going beyond Sea or else that the Earl of Bath found them so sealed up and covered among the Duke's Writings And either way it is a mighty strong Proof that the Deed was all along till he went to Jamaica in his own Custody and not in the Earl of Bath's But however it is further objected That it was a forgotten Deed. Methinks what I last urged is a very good Proof it was not forgotten but there is yet further Proof of it Not long before he went abroad the Duke had some Discourse with Mrs. Crofts who as she swears was told by him that she should have a good Neighbour at New-hall if he should miscarry beyond Sea to wit my Lord of Bath And Lane that is one of the Duke's Servants doth swear that the Duke told him That after his Death the Earl of Bath would have New-hall Mr. Crosts swears That upon his Application to know who he should address to in case of his Grace's Death the Duke told him all he could do for him was to recommend him to the Earl of Bath and Sir Walter Clarges and ordered him to leave the Keys of his Writings with the Earl of Bath for he was most concerned in them in case he should do otherwise than well It is proved that the usual Discourse of the Family was that the Earl of Bath would have the Estate after the Duke's Death which must happen from some Expressions of the Duke to that purpose And Sir Walter Clarges doth in his Answer swear That the Duke told him he had provided for him as the Earl of Bath knew which could be only by this Deed. And Mr. Greenville swears in his Answer much to the same purpose And Mr. Courtney swears That eight or nine Years ago my Lord of Bath came to him with a Draught of a Settlement to the same effect to advise upon And about three Months before the Duke went to Jamaica he came again with a Copy of this Settlement to advise whether a Will would revoke it and that he gave his Opinion it would not if the Circumstances of the Power were not pursued But now here the Objection recurs again Is it possible to be believed that the Duke should deliberately make so solemn a Will take six Months time in the drawing and publishing of it and then execute it in the Presence of three Witnesses if he had not forgot this Deed but had known all along that there was such an one If he did know it and had acquainted the Counsel that drew his Will with it certainly he would have advised him that unless he did revoke it according to the Circumstances of the Power all this Care and Solemnity would signify nothing Truly on the other side it is to be considered Whether the six Months was taken up in Deliberation and solemn Preparation for making of that Will or whether that was not an Evidence of a Difficulty to prevail upon the Duke to do it at all For I must take the liberty to say there are Proofs in the Case of Importunities used to bring him to it Dr. Benwick did tell the Duke unless he did it the Dutchess would have a Return of her Distemper and be very bad again It is proved that when Money is to be paid for the Counsels Fees upon drawing it the Duke was uneasy and said the Dutchess might pay it if she would for it was her Business There appears great Difficulty afterwards to get him to execute it that Sir Thomas Stringer importuned him much to it upon which he grew very much in favour with the Dutchess and there was Enquiry made for a Baronet's Patent to be got for him all to engage him the more to get this Work done and when it is done how doth he bring it about The Duke was that Day to go by appointment to Sir Robert Clayton's to meet with my Lord Jefferies and seal the Deeds of Purchase of Dalby and Broughton Sir Thomas takes this Will in three parts and three Witnesses along with him to Sir Robert's and after my Lord Jefferies were gone and the Duke in a fretting discontented Humour he gets him into a private Room in that House and then tells him he had brought his Will to him to seal and the Duke as Mr. Crofts swears was unwilling to do it then and would have put him off but he prest the Duke very hard to do it then and told him he must do it for he was to be gone the Northern Circuit the next day and could not be at the Execution of it upon which he did it but not till after much urging and solicitation Now I would argue hence Why should the Duke of Albemarle be uneasy and disturbed at his being importuned to execute this Will after so much Pains and so much Time in the drawing and preparing it I cannot imagine any reason why but that he had not forgotten this Deed which he never intended to alter and yet must do something to satisfy some body's Importunity He knew he should in doing it do a thing that would look very odly one day and that made him so uneasy tho at last he did comply and did it But admit this Deed had been at that time forgotten by him or concealed from him Would this in a Court of Equity be a sufficient Ground to set it aside I confess of a Purchaser where one that claims by such a Deed will stand by and permit the Purchase to go on and conceal the Deed as to that Purchase the Deed will be a fraudulent Deed but there is nothing of that in this Case neither such a Purchase nor such a Concealment And therefore it can signify nothing here to set aside this Deed tho concealed and forgotten But now I come to a third
As to this Case I would observe first this is not a Case upon a Power of Revocation to devest an Estate nor a Performance of a Condition But further here are Instructions prepared and it went as far towards the Execution of the Power as could be till an Impediment came in the way by the Act of God in the Death of the Party Now I agree where there is an Impediment by the Act of God or Fraud or Default of the Party who claims by the Deed Equity may interpose But that doth no way come up to the Case in Question Then there is the Case of Dey and Thwaites which was lately in this Court Thwaites makes a Settlement to the use of himself for Life and afterwards to such Child and Children and for such Estate and Estates as he should by any Writing under his Hand and Seal testified by two credible Witnesses limit and appoint He afterwards makes a Will and has but two Witnesses to it so that they did not cite the Case right that said there were not two Witnesses but two Witnesses are not enough by the Statute to make it a good Will and thereby he giveth a Rent of 100 l. a Year to such a Child and dies Now one great Question was Whether the Power being to limit Estate or Estates he might limit a Rent out of those Lands It was held in Equity he might and truly I think that he might at Law There is I confess an Opinion against it in the Case of Brown and Taylor where there were three Judges against one But really I think it is good at Law A second Question was Whether this being void as a Will by the Statute should be yet a good Declaration of the Trust and an Execution of the Power And I think the Court of Equity did very well in decreeing it to be Good For tho it were not effectual in all Points as it was intended as a Will yet it was a Writing which had all the Circumstances required by the Power and therefore I see no reason to question whether it were Good The next Case is the Case of Ward and Booth and that stands thus Sir Thomas Brereton made a Settlement with a Power of Revocation by a Writing under Hand and Seal before two Witnesses and he in a Passion one day tore off the Label with the Seal but afterwards repented Delivered it to the Trustees to be preserved to the Uses And enquiring whether what he had done amounted to a Revocation and being advised it did not he was very well satisfied This Cause came to be heard before my Lord Nottingham and adjudged no Revocation it appearing there was a continued Intention not to revoke But I desire to read part of the Ground that Decrce went upon for that justifies what I said in case where there is a Disability or an Impediment by Fraud this Court may relieve though there be a formal Revocation There is but one Precedent more that I shall mention and that I take to be directly for the Earl of Bath It is the Case of Arundell and Philpott Mary Philpott being a Widow seized of Lands made a Settlement upon the Defendant with a Power of Revocation upon the tender of a Guiney She afterwards makes another Settlement upon the Plaintiff but without any proof of the tender of the Guiney Upon a Bill suggesting her Intention to revoke the Plaintiff could not prevail in this Court to set aside the first Settlement but was dismist to Law and ordered to try the Title within a Twelve-month whether Revoked or not Revoked And there were afterwards a Trial and the Tender of the Guiney did happen to be proved and so the Power was well executed at Law But this Court would not interpose to set it aside as a Revocation in Equity upon the Intention only without a proof of the due Execution And upon the whole Matter I conclude that in a Court of Equity there cannot be a Revocation of a Deed to which a Power to revoke is annex'd but what is pursuant to that Power unless there be either an Impediment from the Party that claims by the Deed or a real disability to execute according to the Circumstances And I think neither of these are in this Case nor are any of those Matters alledged of Surprize Circumvention Concealment or the like any good grounds to set aside this Deed if they were proved which I think there is no pretence of Lord Chief Justice TREBY I Am of the same Opinion with my Brother Powell I shall state the Case as it stands upon this Deed and Will The Will was made in 1675 the Deed in 1681 and shall take notice as I find there was much use made of it on one side of what the Expressions are in the Will and somewhat of what Deficiencies there were of Expression in this Deed. In 1675 the Duke of Albemarle made his Will and by that Will he declares That in respect of my Lord of Bath's being one of his nearest Kindred and out of Gratitude due to him for many Acts of Friendship and good Offices done to him and his Family his Will was that he should inherit all the Parts of his Real Estate not therein otherwise disposed of and therein he desires the King to grant to the Earl of Bath and the Issue Male of his Body the Title of Duke of Albemarle and that his eldest Son might bear the Title of Lord Monk And this was intended in Trust to pay all his Debts and certain Legacies in the Will He therein gives a Legacy of 1000 l. to Henry Monk not the Father of the Plaintiffs the Monks who it doth not appear was any ways related to him Six Years after in 1681 this Duke Christopher makes a Deed and in that Deed recites this Will true as to the Date but mistakes it in several Particulars This Deed settles the main part of the Estate after the Duke and Dutchess their death without Issue by the Duke upon my Lord of Bath part of it immemiately after his own death without Issue other parts upon Sir Walter Clarges and Mr. Greenville And it has been observed that almost all the Limitations of the Estates in the Deed differ from those in the Will at least in express Terms if not in very Substance This Deed also sets forth the Grounds why the Duke made it and it is to this Effect He doth declare he was so unfortunate that his next Heir at Law was descended from a Regicide and therefore I would observe it was not only to confirm the Will as they would have it but for preventing so dishonourable a Descent of the Estate which he owed to the Bounty of the Crown and for conveying and settling and assuring the Lands to the Uses thereinafter declared and confirming and corroborating that Will which he did not intend to revoke and to prevent any Claim either by the Heir or any pretended surreptitious Will which
might be obtained from him by Surprize These are the Considerations and Reasons expressed in the Deed why he gives this Estate away from his Heir at Law Both this Deed and Will agree in this for substance that they limit the main part of the Estate to the Earl of Bath tho they differ in several of the Limitations to divers Persons and as to some of the Limitations to the Earl of Bath they differ too whether material or no shall be considered by and by There is in this Deed a Proviso which makes the great Question in this Case that the Duke should have Power to revoke any of the Uses in the Deed and limit new ones but this Power is restrained by several Circumstances it must be by writing under his Hand and Seal in the presence of six Witnesses three whereof to be Peers of this Realm and a tender of 6 d. to the Trustees named in the Deed. Afterwards in the Year 1687 the Duke makes another Will and thereby he giveth some Parcels of his Land to Mr. Bernard Greenville my Lord of Bath's Brother Sir Walter Clarges and others and makes some larger Provision for the Dutchess for her Life than she had before but the main bulk and residue of the Estate is by this Will given to Colonel Thomas Monk Father of the Plaintiffs And he doth likewise in that Will make a Petition to the King that he will be pleased to confer a Title of Honour upon him and make him Baron Monk of Potheridge the Ancient Seat of the Family That Will of 75 and the Deed of 81. are subscribed by six Witnesses each this Will of 87 but by 3 and so the defect of this Will to make it a Revocation is that there are but three Witnesses and none of them Peers and there was no tender of 6 d. to the Trustees The intent of the Earl's Bill is to have an Establishment of this Deed against this last Will and the intent of the Dutchess and Mr. Monk's Bills is to set aside the Deed and establish this last Will and that upon certain Grounds of Equity the Deed having obtained a Verdict for it at Law This is the general State of the Case the particulars will be brought in best under the several Heads that I shall mention But first I shall take notice as I go what Progress this Cause has had since it was first in Agitation First it was insisted That this Deed was a false Deed and that was thought fit to be directed to a Tryal at Law and it was most proper it should be so for it concerned a great Inheritance and Free-hold conveyed by Deed and a Devise both Titles at Law and that was fit to be decided in the proper Judicature for such things in a Court of Common-Law by a Jury Accordingly this Tryal was directed in an Ejectment at the King's Bench Bar and this Court so far aided the Parties to come to the proper Question as to order there should no Incumbrances stand in the way or be insisted upon but any thing that obstructed the Tryal of the Right should be set aside So that in short the Validity of this Deed was the thing directed to be tryed it was accordingly tryed and thereupon a Verdict obtained that the Deed was a good Deed and the Earl of Bath's Title under it good at Law and Judgment was afterwards entred up and that for the Defendant's part was not conclusive if there had been any Misdemeanour on the other side or in the Jury they might have had redress by applying to this Court for a New Tryal nay they may try it again when they please upon a new Ejectment But they have acquiesced under it to this day that is to say now for two Years together so that we must take it for granted at least this Court is I conceive bound by it that it is a true Deed and a good Conveyance of the Estate as much Evidence there is of it as is possible so strong an Evidence that we must take it to be a true and a good Deed and a Deed without Suspicion Twelve Men besides the Witnesses to it have Sworn the Validity of it that being the sole Question before them and this must be remembred all along in the Consideration of this Case Indeed the Counsel on the other Side did seem to speak a little slightly of it as upon a doubtful Evidence and at last that it is true by this Verdict they must admit that this Deed was sealed by the Duke though that was not a little controverted before But in truth here is the Right tryed it was a Deed that was a Conveyance of the Estate and now we must take it for granted that the whole of the Deed was tried and confirmed by the Verdict so that it is a good Conveyance at Law and passeth all that the words can carry And therefore in our Consideration of this Case we must lay aside all the Evidence that was or was properly to have been given at the Trial as to the Truth and Validity of the Deed And I for my part can allow my self no Consideration of this Deed in speaking to it but such as are Considerations of Equity consistent with the Truth of the Deed. And that is now the only thing that is to be applied unto what there is in Equity and Conscience why this Deed should be set aside when it is allowed to be good in Law there is no doubt but there may be good Ground in some Cases in Equity to set aside that which is good at Law But the Question is whether in this Case there be any such or no. But before I proceed to the Consideration of what has been insisted upon in that kind I desire to take notice of some things about the Will of 87. I am very well satisfied that that Will is well proved There is my Lord Chief Justice Pollexfen hath proved the Instructions given for the preparing it and the drawing of it and there are three Witnesses that speak to the Publication and this is confirmed by the Testimony of Sir Robert Clayton who transacted the first Part of that Affair to bring the Duke and my Lord Chief Justice together and I do equally reject all the Evidence on the one side and the other against the Truth of either the Deed or this Will Then this Will would have been a good Disposition of the Lands if the Law did not hinder that is if this Deed did not stand in the way as a prior Disposition and found good in Law so the Deed is good if Equity do not hinder it Now the Grounds of Equity which my Lord Mountague's Counsel insist upon are I think these I have made indeed but four of them but in Substance I do not differ from my Brother Powell about them for I comprehend that the Deeds being Ancillary as it was called and attendant upon the Will under the Head of a Revocation in
Respect for him than to dispute such trivial Matters and for any Leases or Contracts they come within the Rule of Purchases and so the Consideration would preserve them Then they say Here is no Monument for the Duke a Person of so great Quality but that may be made good out of the personal Estate I am sure it is no Objection in point of Law But the last Thing they urge is If there be no Relief in this Case you put the greatest Indignity and Reproach upon the Duke that can be imagined That he should call Mr. Monk Cousin send for him out of Holland to leave his Will with him in the Will give him so great a Share of his Estate desire the King to make him a Baron and appoint his Son to be educated as one that was to make no small Figure in the World that he should send for my Lord Chief-Justice Pollexfen to draw this Will make three parts of it deliver one to the Dutchess of Newcastle another to Colonel Monk and carry a third with him into Jamaica and there take publick notice of it and after all this Expectation raised in Mr. Monk of a Fortune run himself into the Charges of an expensive but what he knew would be a fruitless Suit This say they is an unconceivable Dishonour to the Duke to be represented as one that would prevaricate so with the King and the World and play with the Misfortunes of his Kinsman and the rather because the Duke was a plain sincere hearted Man and in all this did but pursue his real Intentions of Kindness to Mr. Monk and his Children Truly methinks they have just as much to say on the other side What shall those many Declarations of Kindness to the Earl before this Deed in this Deed and after this Deed by Letters and other things signify his Care of my Lord Lansdown as one he was most concerned next to my Lord of Bath himself his Petitioning the King to confer on him the Title of Duke of Albemarle in case of his failing of Issue-Male and all this to signify nothing besides the known Kindred the apparent Obligations and Merit of my Lord of Bath sure if all this be considered the Duke's Honour is as much concerned on this side as on the other to approve himself sincere in all these Solemn Transactions Would he own him as his nearest Kinsman and the most deserving of his Blood and all the while have a secret purpose in the last Act of his Life to make a Will by which he would set aside all he had profess'd to do for him and by leaving this Deed and Will with him leave only so much in his hands as should put him into a chargeable Suit for nothing Therefore upon the whole I think there is greater reason to conclude that the Duke did not certainly mean to do this last Act as what he would have to stand against so much formerly done the other way But I rather think the Evidence is strong to perswade any one that the making of this last Will was to satisfie another purpose and make his own Condition easie at home But my Opinion as to the Judicial part of this Case which I thus happen to be of is the stronger in me because of the Authority of two Cases which I take to be express in Point and those are the Cases of Wynne and Roberts and Fry and Porter In the Case of Wynne and Roberts there was Proof of a very great surprize upon the Man whereby he was induced to make a Will and to disinherit his Child of whom he was before very fond and who was married into a very Honorable Family and to break a Settlement solemnly made before all this Matter was Charged in the Bill and proved But not withstanding this the Court declared they would give no Relief but if they could expect any they must go to Law and at last it was ended only by a Bill in Parliament The Court said Try it at Law a Will or no Will and do not expect the Chancery should make Mens Wills or set them aside if legally made especially then not upon bare Conjectures and Suppositions concerning a Man's intentions to relieve against a Solemn Act and Title found at Law In Fry and Porter's Case one of the great Reasons why the Court denied Relief there was that it was a Controversy between two voluntary Conveyances and there that Side that had the Advantage at Law ought to keep it and it was without Precedent to relieve in any such Case So say I in this Case we have no Precedent of Relief in any such as this now before Us We must not say this Court is unlimited unbounded by any Rules it is no doubt limited by Precedents and Practices of former times and it is dangerous to extend its Authority further If therefore I err in my Opinion in this Case I err with these Precedents on my Side and because I have never an one to guide me the other way the Desendants are in Possession of a Verdict Judgment and Title at Law and I can see no ground of Equity to relieve the Plaintiffs against them Then it being very late the Court put off the delivering of the Lord Chief Justice Holt's Opinion and the Lord Keeper's Decree till another Day Die Veneris 23 Decemb. 1693. In the Court of Chancery in Westminster-Hall Com. Mountague al. adv Com. Bathon al. e contra lord-chief-Lord-Chief-Justice HOLT IN this Case wherein the Earl of Mountague and the Dutchess of Albemarle and others are Plaintiffs and my Lord of Bath and others Defendants I shall open the Case very shortly as it stands upon the two Wills and upon the Deeds There was a Will made in the Year 1675 by Christopher Duke of Albemarle wherein there is a Disposition of several parts of his Estate upon his dying without Issue to several Persons but the main Part and Bulk of it is given to my Lord of Bath And in that Will there is mention made of a particular Esteem and Affection which the Duke bare to my Lord of Bath that he was the nearest of his Kinsmen by his Father's side and that he also was indebted to him for many great Acts of Friendship and Offices of Kindness performed to him and his Father Then there is in that Will also an express Desire that the Title of Duke of Albemarle by the King's Favour might be conferred upon the Earl of Bath and that the eldest Son of the Earl of Bath and so the eldest Son of the Family successively should be called Lord Monk so that the Names of Albemarle and Monk may with the King's Favour remain with his Estate in the Posterity and Family of my Lord of Bath in memory of the late Duke his Father and himself The Estate being so disposed of by the Will of 75 there are two Deeds made in the Year 1681 a Lease and a Release The Release doth recite
this Will but in the Recital of it there are some Differences from what is in the Will it self some Variations from it In this Deed it is mentioned that the Intent and Design of the Deed was to dispose of the Estate according as was in the Will And whereas it might be thought strange that the Duke by his last Will which by that Deed he doth confirm and not intend to revoke should give away his Estate from the Heir at Law Therefore for the satisfaction of the World the Duke doth declare the Reason which hath been frequently mentioned and then the Deed disposeth of the Estate some to the Greenvills some to the Clarges but the Main and Bulk of the Estate he settled upon my Lord of Bath But in this Deed there is a Power of Revocation to this effect That it shall be lawful for the Duke at any time to revoke this Deed upon the tender of a Shilling by writing under Hand and Seal in the presence of six Witnesses whereof three to be Peers of the Realm and then to limit new Uses Then he makes his Will in the Year 1687 and therein he gives his Estate in a different manner that is the bulk and the main of it is given instead of my Lord of Bath to Mr. Monk whom he supposeth to be his Kinsman and desires that the Name and Title of Baron Monk may by the King's Favour be bestowed upon him in case he himself died without Issue Now the Question is whether or no this Will in 87 hath revoked this Deed made in 81 in Equity for there are but three Witnesses to this Will and not one of them a Peer so that in Law it is very plain it is no Revocation at all it cannot be a good Revocation there because the Power is not pursued the Circumstances are not observed here is neither the tender of a Shilling nor six Witnesses whereof three Peers nay not only so but here are but three Witnesses in all and not one of them a Peer I am of the same Opinion with my Lord Chief Justice of the Common Pleas and my Brother Powell that this is no Revocation in Equity and that there ought to be no relief had by the Devises of the Will of 87 against those that Claim by the Deed of 1681. These things are to be premised as granted and not to be questioned First That the VVill of 75 was a good VVill there is no manner of dispate to be made of that Secondly This Deed of Release that was made in 1681 is a very good Deed and there is no manner of dispute to be made of that neither for if there had not been a Verdict in the Case yet if they come to have the Opinion of a Court of Equity touching Relief in Equity against this Deed it ought to be taken to be a good Deed in Law or they were not to come hither for Relief against it And as this Deed is to be admitted to be a good Deed so in this Debate all those Circumstances that appear in the Depositions are to be admitted to be true in this Cause I do not say that they are never hereafter to be controverted but now upon this Debate they are to be admitted true As First That Sir William Jones his Hand is to the Perusal and Approbation of the Proviso and it is his VVriting Secondly That he was a VVitness to the Execution of this Deed. And Thirdly That this is true which Errington swears about the Abstract of this Deed made by Sir Thomas Stringer which being main Circumstances about the Deed and Controverted now must be taken for true in the Consideration of this Cause And then a third thing that is to be admitted without all Contradiction too is that this VVill of 87 is a good VVill. The Case standing thus and all these things being taken for granted the Question I say will be VVhether those that Claim by this VVill of 87 can have any Relief against those that Claim by the Deed of 81 And I think there ought to be no Relief but those that Claim by the Deed of 81 have a good Title in Equity as well as in Law I shall not mention any thing of the Evidence that hath been given or insisted upon to support the Deed nor now answer any of the Objections made against the Truth of it for I told you first I take it for granted that it is a good Deed and a true Deed without all dispute But to the intent I may comprehend all the Matters that I think are any way considerable and fit to be insisted upon I shall speak to four general Heads First I shall consider whether upon the Frame and Manner of this Deed of 81 there be any ground of Relief for the Plaintiffs against it Secondly VVhether there appears upon the Proofs and Depositions in this Cause that there was any undue way or manner of Obtaining this Deed from the Duke Or any Way or Contrivance or Management for the Contriving it in being afterwards which may produce a ground of Equity for the advantage of the Plaintiffs Thirdly I shall consider the Circumstances and Conditions of the Parties that are in this Cause those that Claim by the Deed of 81 and those that Claim by the VVill of 87 and whether upon that account there can be any Equity raised in this Cause And Fourthly I shall consider the Person of the Duke of Albemarle and the particular Circumstances he was under at the time of making this VVill in 87 and whether by reason of him from whom the Estate proceeds or the Circumstances he was under there will appear any ground of Equity in this Case The first Consideration I say shall be whether upon the Frame and Manner of this Deed there be any ground of Equity for the Plaintiffs against it There were several things under this Head that were insisted upon by the Counsel for the Plaintiff As First That this Deed of 81 doth partake of the Nature of a VVill because it recites a VVill and it is made to confirm a VVill and therefore shall be Revocable in a Court of Equity as a Will shall be in a Court of Law Secondly That it pretends to Recite the Will of 75 and there are several Mistakes in the Recital and very great Variations from it Thirdly That there are several Dispositions different from those in the Will which it pretends to confirm Now for the first To maintain that when a Deed recites a Will and doth say it self is made to confirm that Will therefore this Deed shall be Revocable in its Nature in Equity as a Will is at Law I must needs say is a Motion that I never heard started before I must confess I am apt to think with the Proceedings and Practice in Courts of Equity that may make it so strange to me it having been laboured with no small apprehended Clearness at the Bar. Therefore for that I
so you cannot imagine that the Duke was at all surprized therein but that when it was executed it was according to that design and purpose Next Sir Thomas Stringer who was the Duke's Counsel to Peruse and amend the Draught as appears by his own Hand sworn by his Son and his Man To imagine then that a Man should be surprized into the making of a Deed when his own constant Counsel doth Peruse and Amend the Draught and the Counsel he used particularly to advise with is by at the Execution and a Witness to it is to say a Man was surprized when he had the Advice of Counsel about it and they were at his Elbow at the Executing of it Now I must confess I am to seek and do not well know what is a Fraud in Equity that shall avoid a Deed which is a good Deed at Law The Case of Bodmin and Wynne and Roberts mentioned by my Lord Chief Justice and my Bother Powell that spake the last day this Cause came on is I think a Case of great Authority in a Court of Equity because it had a great Transaction both in this Court and in the House of Lords before it came to a Resolution and Result I shall put the Case in short as it was here in Court Mr. Roberts Son to the late Earl of Radnor married the Daughter of Mr. Bodmin Bodmin had made a Will and given his Lands to the Children of his Daughter in Tail and after this he makes another Will whereby he gave one part of that Estate to Mr. Wynne and another part to a remote Kinsman It did most plainly appear in the Depositions of this Case that this Will was obtained by great Fraud and Circumvention that is Wynne got into his Acquaintance by pretences of some little Offices of Friendship and Kindness he got him away from his Friends and Relations and during his Sickness he did by false Stories withdraw his Affection from his Daughter kept him in secret Places that no Friend might come at him and while he was so secreted and wrought upon was this last Will made whereby he gave his Estate away from his Child to a Stranger All these pieces of Practice were Apparent before the Court at the Hearing of this Cause which was heard by my Lord Clarendon Assisted by who all Unanimously Declared that this was a VVill obtained by Fraud and by Practice and that there was great Reason if they could to relieve against it But they searched Precedents and could find none that would come up to the Case Thereupon for difficulty there was Advice taken about it in the House of Lords and there upon Consideration was an Order made by way of Advice to the Lord Chancellor that he should proceed to do Justice to either Party though there were no Precedent found to govern the Judgment Afterwards this Cause came to be heard again 12 June 1666 when my Lord Chancellor being assisted by my Lord Chief Justice Bridgman my Lord Chief Baron Hales and Mr. Justice Raynsford did declare That there could be no Relief though it was said before it was apparently a VVill obtained by Fraud and this to the Prejudice of the Heir at Law who had never Offended or given him any Cause to Disinherit her So the VVill was dismissed but the Parties complaining in Parliament were Relieved by the Legislative Power by an Act of Parliament Now besides that there was Evidence of ill practice in that Case but in this I say I find none this is so great an Authority and does shew the wariness of a Court of Equity that I think none can be greater Equity would not relieve them but they were put to seek their Relief by a Law made on purpose But I will suppose now in this Case that when my Lord of Bath did understand the Kindness of Duke Christopher and knew of the Will of 75. and knowing the Incoastancy of the Duke's Temper and other Circumstances in the Family and the Revocableness of a Will should have applied himself to the Duke and told him ' It is true you have been so kind as by your Will to bequeath me a great part of your Estate but you may be prevailed with on a sudden or by some Artifice or other to alter this Will of yours and you may be surpriz'd into the doing of it pray will you make a more solemn Settlement to confirm this Kindness by a Deed And had prevailed to get him to do it Suppose I say he had done so tho I find no Evidence in this Case of any such thing suppose he had been employed in the whole transaction of such a Deed is this unlawful or is it any harm No it is very innocent he might lawfully do it and if he had opportunity he might prudently do it But I say I find not so much as that in this Case but this Deed was fairly obtained from the Duke whether it was by the advice desire or interposition of my Lord of Bath doth not appear or whether it were the Duke 's own voluntary Act though I think it is not material whether it was the one or the other But it hath been said That when Duke Christopher did design to alter his Will and for that purpose sent to my Lord of Bath to bring the Will of 75. which he had in his Custody my Lord of Bath should have told him of this Deed too And therefore the concealing of the Deed of 81. from D. Christopher is a kind of fraud and not making a discovery of it then he shall not now take advantage of this Slip and have the Estate by this Deed because if the Duke had considered the Proviso in the Deed he would have taken eftectual care to have had a good Revocation in all the Circumstances And that he did not so revoke it must be imputed to the concealment of this Deed from the Duke by the E. of Bath So was the Case of Mr. Clare at the Suit of the E. of Bedford which was opened the last Term. A Man that stands by and sees a Cheat which might have been prevented by his discovery shall not take advantage of his own wrong and profit by such concealment But doth it appear in this Case that my Lord of Bath knew to what purpose the Duke sent for his Will or how or in what manner he would alter the Settlement of his Estate Why must he be bound to take more notice of this Deed to the Duke than the Duke himself It was the Duke's own Act and not my Lord of Bath's and why should he give him notice of his own Act The Rule of Law when one is obliged to give notice to another is this When the thing lieth more in the Knowledg of the one than the other and he cannot come to the Knowledg but by his means But when one Man hath reason to know and doth as much as the other he is not bound to give notice
upon the selling of Dalby and Broughton to my Lord Jefferies he did give the Dutchess a Caution not to be so earnest for finishing the Bargain for she might be a loser by it which could mean nothing but that she had an Interest in it by this Deed. As to the Objection that my Lord of Bath stood by and saw that Purchase made and gave no notice of this Deed to the Purchaser I confess had my Lord of Bath set up this Deed against and to overthrow that Purchase that would have brought it up to the Case of Wraw and Ford but every body knoweth that a bare voluntary Settlement is of no force against a Purchaser without notice and as to the Leases and Grants of Annuities there is no Proof that ever my Lord of Bath knew of them Then it was Objected that tho' it go not so far as purposed Concealment yet the thing was out of mind and the Duke continuing Owner of the Estate and acting as Owner tho not with all the Circumstances required those Acts done by him as Owner are to be Supported in a Court of Equity This seems a hard Demand for a Voluntary Devise to crave Relief against a prior Settlement with a Power of Revocation because he that made that Settlement had forgotten it There is no Precedent to warrant a Decree of that Nature nor is there any Pretence of Reason for it For betwixt Two Persons each of which claim by a Voluntary Settlement the matter stands upon an equal Poot and there is no possibility of an Equitable Consideration to assist the one against the other And if there were any Ground for it as a Notion there were no Room for any such Notion as to the Proof in this Case For it is founded upon a Supposition that the Duke of Albemarle had forgotten the Settlement of which there is no Proof but only an Argumentative one drawn from his disposing of his Estate another way and manner But that he had not forgotten it besides the Answer of Mr. Greenvil and Sir Walter Clarges there are other things to be â—id And as to their Answers I take it no Decree can be made against a Man's Answer upon the Proof of one Witness Why then should a Decree be expected against a Man's Answer where there is no Proof to the contrary at all Sir Walter Clarges upon some what that had been told him of the Duke's intentions towards him by this last Will as should seem took the liberty to complain to the Duke and seemed much discomposed but the Duke bid him not be concerned at what Stringer said for he had otherwise better provided for him Now there is no other Provision but what is by this Deed. Mr. Greenvil addressed himself to the Duke to thank him for what Kindness Sir Thomas Stringer acquainted him he had shewn him in his Will but the Duke replied with some Reflection upon Sir Thomas Stringer who pretended to have been very Instrumental in it that he had never moved him in it but that he had taken Care of him and his Brother would tell him wherein and if he would he might tell his Brother he said so And he swears he did go to his Brother my Lord of Bath who told him The Duke had indeed Provided for him and Setled a part of his Estate upon him But that if the Duke had not allowed him so to do by sending him to him he would not have told him of it All this is a full Proof that the Duke had not forgotten this Deed at that time but it cannot be believed that the Duke had ever forgotten this Deed without disbelieving several Acts that have been substantially proved to be done by him as when upon my Lord Lansdowns Marriage his Letter does particularly take notice of a great Interest he had in him and seems expresly to refer to this very Deed as being so much concerned in his good or ill Fortune as my Lord of Bath himself very well knew and congratulating the Match with my Lord Treasurer's Daughter he goes on to desire That as he had taken care to Marry him well so he would have great Regard to his Education which he did mind him of remembring still that he was most concerned in him of any one except himself as he very well knew This could refer to nothing but some Settlement of his Estate and none appears but this There seems to have been some Attempt to interrupt this Friendship and Amicable Correspondence between the Duke and the Earl for by a Letter dated as I take it 31 Jan. 81. The Duke says his Kindness and Friendship shall always be the same and all the malicious endeavours of ill people shall not be able to break the Link between them so that it should seem there were malicious Endeavours used to sow differences between those Noble Persons but by whom is not apparent in the Proof But still there is a continued Series of kind Letters between them which goeth on even to the time of making the last Will in 87 as full of Gratitude all the Duke's Letters great numbers of which were produced as can be for his continued Services and Kindness nay down to the time of his going to Jamaica and while he was there Now it looks to me very strange that the Duke should all this while be receiving Obligations and owning them from my Lord of Bath and yet must be supposed to have forgotten what he had done in acknowledgment and recompence of these Services Then there is besides all this the Positive Testimony of Mr. Croâ—â—s and his VVife both swearing particular Declarations from the Duke 's own Mouth which can have Relation to nothing but this Deed. There is indeed one thing that this urged as a strong Argument the Duke intended to alter this Settlement that is his taking such formal steps in preparing and drawing this last VVill his Advising with my Lord Chief Justice Pollexfen and so much Solemnity as was used in having the parts of it ingrossed and delivered with such Ceremony to three several Hands It is they say hard to imagine he would do all this with a deliberate intent that it should all signifie nothing as to his real Estate and so quit the World with a great deal of Pageantry and Ceremony to no purpose Now it must be owned that it doth seem a strange part in the Duke and the World must be surprized at it For it is impossible to make the Duke's Actings of a-peice and reconcile such Contradictions He cannot indeed be cleared from Prevarication He did certainly intend to deceive the Dutchess or my Lord of Bath It is most evident he did keep my Lord of Bath in hand that he should have his Estate for besides the Testimony of Mr. Prideaux and other Witnesses concerning the Duke's Declaration of his intending to settle and having settled his Estate upon him we find by this Deed his Estate is so actually setled
and that Mind continued till 81 and it appears by Letters as well before as since that Duke Christopher intrusted him in all his Affairs of Consequence acted not in any thing but with his assistance continually made use of his Friendship at Court to the time of his Death when he was dissatisfied with any of his Servants my Lord of Bath was the Man that must settle the matter when he was to Purchase my Lord Bath must buy for him when he was to sell my Lord of Bath was to transact the matter when he wanted Money my Lord was to procure it for him when he was in danger of losing Money my Lord is applied unto to prevent it All this appears by the several Letters that have been read and produced When he was gone to Jamaica and any Request at Court my Lord's Interest was that which he relied upon my Lord of Bath was the single Trustee to be applied to chiefly in what concerned the Estate the Keys of the Evidence-Room were to be deposited with him as being principally Concerned if he should miscarry Now it must be confessed a Man may do as much as all this comes to and make use of another Man's Friendship and not design to give him his Estate when he had once firmly setled it so and repeated his Assurance of Kindness and continued to make Profession of Kindness all along to the time of his Death and went on to make use of his Service because he thought he might freely command the Service of one who expected to have such Advantages from him yet then I do not see but that it must be admitted that he did deliberately design to impose upon my Lord of Bath or if he did not he did intend to impose upon my Lady Dutchess Now be it which it will I do think he is not to be excused in reference to the Point of Honour as to the Request made to the King for the Earl of Bath and in pursuance of Duke George his desire who engaged the late King to promise under his Sign Manual and he hath made the same kind of Request for Mr. Monk Now upon the whole Matter whether this VVill of 1687. was made to free him from some Importunities in his Family is a great Question There are some proofs in the Case that greatly look that way It is plain he did not execute it for several Months after it was prepared and drawn and when it was published it was obtained with great Importunity against his Inclinations at that Time and there doth not appear any Intention that it should revoke this Settlement but on the contrary it should seem he did not intend so for there are no VVitnesses called to the VVill but the same that came with Stringer from Newcastle House to that purpose But whether he did intend it should take Effect as to the Personal Estate only or to delude my Lord of Bath which way his Honour is best saved is not at all to our purpose to consider upon the Case before us in Judgment Though I must say take it one VVay or the other he seems to blame and to have dealt in some sort double The next thing insisted upon is That this Deed is revoked in Equity of this VVill and though the Power be not pursued in all the Circumstances yet his Intention appearing to make this different disposition of his Estate a Court of Equity should supply that defect Now I take it for granted that a Power of Revocation shall not be carried further in a Court of Equity than the Law will carry it The Law hath been liberal in expounding Powers of Revocation favourably and where the Law expounds a thing according to an equitable Construction there is no reason for Equity to extend it further Where there appear to be other equitable Considerations it may have another Judgment but if it stands without any mixture of other equitable Considerations I think it would be very hard to break through a Settlement especially so solemnly made that he thought fit to restrain himself from altering it without the Assistance of so many Noble Persons whenever he would make use of the Power thereby reserved to him I say it would be a very strange thing for a Court of Equity without the mixture of any other Considerations to assist another voluntary Conveyance against this The Case of Arundell and Philpot is a full Authority in this Case and it has been so often repeated that I need not mention it any further As to what was insisted upon by some about the Revocation being compleated as to the number of VVitnesses by the publication in Jamaica and the impossibility of having any Peers there I must confess had the Duke in Jamaica had an express deliberate Intention and Purpose to revoke and done any Acts to testify it and gone as far in pursuance of the Circumstances as his Condition in those parts would admit that might have come in within that Foundation of Equity to wit Accident But I think there is no ground of Proof of any such Intention or Action For the Proof amounts to no more than this The Duke to prevent any troublesom Applications to him shut up himself in his Room and those that came to him were to come in at the Window And a strong Box in which his Papers were standing under the Window by frequent trading upon it he had a Suspicion that there had been some Attempts to force and open it whereupon he calls for the Box to open it and out of it takes several Papers which he read or gave to Dr. Sloan to read several Letters as I remember and afterwards he took up a sealed Pacquet and said to the Doctor This is my Will and put it down again Is this any manner of proof in the World that this Act was done animo testandi Much less is it any proof that there was any notice taken at this time of this Settlement or that he would avoid it I would say something to that other Point that this being a Deed made to confirm and corroborate the Will of 75 is but Ancillary to the Will and depends upon it and is to stand or fall with it and upon the Revocation of that Will did fall with it This is an Objection wholly inconsistent with the other Arguments that are used against this Deed that it was by Surprize For by those Arguments they would destroy the Deed as inconsistent with the Will but now the Argument is turned the other way But my Lord Chief Justice Holt has so fully and clearly answered that matter that I shall not need to trouble you with saying any more in it The Cases cited about it are in no sort applicable to this Case The last thing insisted upon was supposing the Deed to stand good yet there being a general Trust raised in it to pay the Legacies in the Will my Lord of Bath was no more than a Trustee and the Duke continued Master of the Estate and he who had such a general Power to charge the Land might do it to the full Value and then consequently might dispose of the Land too Now this Point of Trust is the proper Subject of a Court of Equity but to expound a Deed which is made on purpose to prevent a Descent upon the Heir and then to make a general resulting Trust to let the Heir in is such a Construction as will apparently contradict it self and the Deed. But that will fall out to be a Point that comes to be considered hereafter how far this may be a Trust in my Lord of Bath to answer Legacies or Debts in case the Personal Estate should fall short it is not properly considerable now The only Point that was spoken to by the Counsel and left for the Judgment of the Court was this whether in this Case here were sufficient Matter for a Court of Equity to interpose so far as to set aside or impeach this Deed of 81. Now as to that Matter I think I have the Concurrence of my Lords the Judges in it and I am of Opinion that there doth not appear sufficient Ground upon this Case for a Court of Equity to do any such thing Therefore I declare my Judgment That as far as my Lord Mountague and my Lady Dutchess and Mr. Monk their Bills pray that the Court will interpose to set aside this Deed so far their Bills ought to dismiss'd As to any other Matters that arise in the Case I suppose there will be time taken to speak to them but this is the only Matter in Judgment before us at present FINIS
that Power Equity cannot enlarge that Right or Power Legally you agree he cannot for if he could then were there no Reason for imploring the Aid of a Court of Equity and there is the greatest Reason he should be obliged by the Rule of Law in a Court of Equity because it is a Law that he hath put upon himself And that is the Equity of the Legal Obligation because it is supposed to be made by his own express or implyed Consent by his Representative to all Laws Here is a Man that hath made a Deed whereby he has actually restrained himself from disposing of his Estate but in such or such a way By the same Reason that you in a Court of Equity will construe it a good Execution of the Power where the Circumstances are not strictly observed you may allow a Man to revoke a voluntary Settlement when there is no Power reserved to him in the Deed so to do And that I take it no one will be so hardy as to affirm A Man voluntarily makes a Settlement to the Use of himself for Life and after to other Uses and reserves no Power of Revocation at all he cannot revoke this no not in Equity And the Reason is the same as to a Power reserved where it is not pursued for he has no other Right to do it but by the Power and it is as if he did it without a Power unless he make a due use of such Power as he had It will be manifestly inconvenient if a Court of Equity have such a Latitude in Powers of Revocation For it is not sufficient to say it is unreasonable a Man should be restrained when a Man will fetter himself nor do I see what Reason there is to say it is imprudent Indeed to argue thus is to make a Man less Proprietary of his Estate than the Law hath made him that he shall not settle his Estate in such a manner as he pleaseth to order for himself a Man at this rate is never Master of his Estate he makes the first Settlement as Owner and it is no matter whether he hath a Reason for making it or no stet pro Ratione Voluntas but then when he hath so done both Law and Reason bind him to observe it and there is no reason for a Court of Equity to avoid it I must confess Courts of Equity would have enough to do if they were to Examine into the Wisdom and Prudence of Men in disposing of their Estates and if they were not discreetly but foolishly done therefore to set them aside there would need more Courts of Chancery than there are to dispatch the business of Equity in this Point but be a Man wise or unwise if he be legally Compos Mentis he is the Disposer of his own Property and tho' he do not dispose of it so discreetly as a Judge or a great Lawyer would do there is no reason Equity should interpose to alter it Besides there may be a very good Reason for a Man to put such a Restraint upon himself and for a Wise Man to do it too For a Man may know the Frailty of his own Temper how apt he may be to be surprized and prevailed upon to make a precipitate or inconvenient Will Settlement or Disposition of his Estate Now to restrain this Infirmity which I have and to prevent an Inconveniency that may arise by my disposing of my Estate upon a Surprize I will restrain my self and settle my Estate so and so that if there be a deliberate intention in me to alter it I may solemnly execute such intention I will therefore have so many Witnesses and those of good Quality that if they find me about any such Action may advise me in it and prevent any apparent Surprize into the doing of any Action that may be foolish rash or prejudicial For that Reason I will bring my self under such and such Restraints And when we see a thing done that may have a good Reason given for it as there may be for this circumscribed Power to restrain from rash sudden Actions it is to be presumed that it was done upon good Reason and therefore the pretended unreasonableness of fettering the Owner of an Estate by himself mentioned at the Bar is no Argument against it For it may be and that is rather to be presumed upon very good Reason than upon no Reason at all Now I think it was never yet determined or settled in a Court of Equity that a Revocation that did not pursue the Power was good in Equity It has been settled and decreed not to be good and that is the Case of Arundel and Philpott which came first into the King's-Bench and then into Chancery and afterwards into the King's-Bench again and there it had its Period A Woman makes a Voluntary Settlement upon a Friend with a Power to revoke upon the tender of a Guinea and upon some falling out or Quarrel that happened between them she makes another Settlement upon Arundell at first in the King's-Bench they could not prove the Tender of a Guinea and so the Revocation was not good at Law therefore they came into a Court of Equity to be relieved It was held that no Relief should be had in the Case altho there was Proof of a Provocation given a Quarrelling and falling out and so there might be some Reason to revoke but no Reason to revoke otherwise than according to the Power So the Bill was dismist Afterwards upon a Tryal at Law that Matter was substantially proved That in the Heat of the Provocation the Guinea was tender'd and consequently a good Revocation and that I look upon as a full authority that there can be no Revocation in Equity where it 's not a good Revocation at Law unless there be a particular intention in the party to revoke which he could not effect pursuant to the power by fraud or accident The Case of Thorne and Newman I take to be good at Law and therefore to be sure good in Equity there was to be a tender of 12 d. at a Day in the Middle-Temple Hall the 12 d. was tendered at the Day but not the Place and accepted That was before my Lord Ch. Justice Hales and the party non-suited upon it For upon a Condition to pay Money at such a day and place the Money be tendred to the Persons at the day tho' not at the place that tender to the Person is good being a Case of Money but it is not so in a Collateral Condition for doing of any other thing And tho' it had not been in that Case good at Law it might be held to be good in Equity upon another account because there where Children in the Case and it was to make Provision for them Now I do acknowledge that a power of Revocation not well executed at Law may be in Equity in some other Cases As where a Man having such a power has a real intention