brown case lord viscount FAUCONBERGE et ux appellant richard Fitzgerald and  other respondent that February I S seize in fee settle his estate in to the  use of himself for life remainder to b in tail but with power of revocation by  any write attest by three witness in I S by deed attest by two witness only  recite that he be indebt as in schedule annex convey his estate to W r and W S  and their heir in trust to pay his say debt by the profit mortgage for sale  and after payment thereof to pay the overplus and reconvey such part as shall  be unsold to he the say I S or such other person and for such use as he by any  write sign and seal by he attest by two witness shall direct I S die without  issue but leave b and c the daughter of two sister his heir at law the deed of  be keep private till after the death of W S the survive trustee in and be then  lie before counsel who direct that the heir of W S shall assign the legal  estate to the trustee in the deed of which be do afterward in upon a treaty of  marriage between Lord Fauconberge and b marriage settlement be prepare by the  same counsel as counsel for Lord Faucouberge who make a settlement on b in  consideration of the great estate in land which he be to have with her the  survive trustee in the deed of join in this marriage settlement c bring a bill  claim a moiety of this estate of I S as coheiress with b for that the deed in  be a revocation of the deed in Lord Fauconberge plead that he be a purchaser  under the deed of without notice of that in and that the settlement make by he  on b be in contemplation of that settlement in and that the survive trustee in  that settlement be a party to the marriage settlement and that though the  purchase be not of the legal estate but the trust only that will make no  difference accord to Wilker and Bodingtons case vern and that neither will it  differ the case though there be no actual conveyance for as the trustee in the  deed of always act under that deed for b that trust shall subsist as to  himself who be a fair purchaser and that he shall not be affect by  constructive notice to his counsel as have be advice with on these two deed in  for that it must be intend that at the time of the counsel be concern for he  which be in he have forget that he have ever see this deed of there be a  interval of two year between his first see it and his be counsel for Lord  Fauconberge and for the reason the court hold that this can not be notice to  his lordship Lord chief baron Reynolds who assist the Lord chancellor hold  that Lord Fauconberge can be a purchaser of no more than b have as no actual  conveyance be make to he the master of the roll say that to be a purchaser in  the notion of equity there must be a actual contract and a consideration pay  and therefore if at any time deed of stand revoke the trustee shall be seize  only of a moiety for the use of b and consequent Lord Fauconberge can be a  purchaser of no more Lord chancellor decree a moiety of the estate and a  account of the rend and profit to c since the death of I S decree of ld king c  affirm the above be literal copy from Eq ab p the statement in brown er p p be  mere that a conveyance to different use be a effectual revocation the case  turn as well on the construction of the power in the deed of as on the  question of notice the rule be that notice to the counsel or attorney of the  party be notice to the party himself but this notice must be in the same  transaction see coote v mammon ante title notice case bro p c Fitzgibbons Rep  viner vol p note to can lily pract Conv Eq can ab p can can William foul  esquire decease have two sister Dorothy and Magdalen Dorothy marry Mr John  grove who have issue by her Thomas grove esquire the respondent Rebecca father  and Magdalen brown marry one Casey who have issue by her a daughter name mary  who marry John Bethan and they have issue a daughter the appellant lady  Fauconberge William foul be unmarried and have no child and seize in fee of  the manor of saint Thomas in the county of Stafford and several land and  hereditament there and in several other county of pound per and he by lease  and release date the d and d of July as well for settle the say manor and  premise in his name and blood to the several use trust and purpose and in such  manner as therein after limit with liberty nevertheless to and for he the say  William foul free and clear at his will and pleasure to dispose of change or  alienate the say manor hereditament and premise or any part thereof for any  estate or estate whatsoever as he shall think fit and to revoke recall and  make void all and every the use and use trust limitation and appointment  thereby raise limit and appoint mention and declare concern the same as also  in consideration of S convey to the respondent Lord Aston then the honourable  Walter Aston esquire Thomas Giffard esquire and the respondent Charles foul  and their heir all the say manor and premise to the use of himself for life  without impeachment of waste remainder to the trustee for year upon the trust  therein after declare remainder to the heir of the body of the say William  foul remainder to the say John Bethan for life without impeachment of waste  remainder to the trustee for the life of the say John Bethan remainder to his  first and other song by the say mary in tail male remainder to all and every  the son of the say mary Bethan in tail male remainder to the old son of the  say Thomas grove which shall be live at the time of failure of such issue male  of John Bethan for life without impeachment of waste remainder to the trustee  to preserve contingent remainder remainder to the first and other son of such  old son of the say Thomas grove in tail male remainder to all other the son of  the say Thomas grove remainder to the appellant lady Fauconberge then  Catherine Bethan the daughter of the say John Bethan for life remainder to the  trustee to preserve contingent remainder remainder to the first and other song  of Catherine in tail male remainder in like manner to all other the daughter  of John Bethan on the body of mary remainder to Dorothy the old daughter of  the say Thomas grove for life remainder to the trustee to preserve contingent  remainder remainder to the first and other son of the say Dorothy grove in  tail male remainder to all other the daughter of Thomas grove successive in  tail male remainder to the right heir of the say William foul for ever these  several remainder be limit to the several person aforesaid on his her and  their take successive the surname of foul and write themselves and call their  child by that and no other surname and the person to who the say daughter  shall several marry be also to take on they in brown like manner the surname  of foul and call their child by that name the year term be upon trust that the  trustee shall out of the rend and profit of the promise pay to the say Dorothy  grove sister of the say William foul pound per and and to the say Thomas grove  her son pound per and for their several life clear of tax and also thereby or  by sale mortgage or demise thereof for the year or any part thereof to raise  all such sum as the say William foul shall owe at his decease and also all  such sum as he by his last will or any other deed or write execute under his  hand and seal in the presence of two or more witness shall give and appoint to  be pay or charge the premise with to any person or person whatsoever but if  the person next in remainder brown er p expectant on the term shall pay all  the say debt annuity and money so to be devise or appoint then the term be to  cease and in the indenture of release be contain the follow proviso videlicet  a proviso or power for the say William foul from time to time by any deed or  write under his hand and seal to be sign and duly seal and deliver in the  presence of two or more witness to demise lease limit or appoint the say manor  and premise or any of they to any person or person whatsoever for any term or  term whatsoever for so much yearly rend as the say William foul shall think  fit and with such other condition and agreement as the say William foul shall  please a proviso that if the appellant Catherine or any other daughter of the  say John and mary Bethan or grove old daughter of the say Thomas grove or any  other daughter of the say Thomas grove who accord to the say limitation ought  to inherit the premise shall marry any person without the consent to marry any  person who shall send of the trustee or the survivor of they or shall marry  any person who shall be a protestant and not of the communion of the church of  Rome that then and immediate after such marriage all the estate before create  and appoint for the benefit of such person so marry shall cease and be void  and another proviso in these word videlicet that it shall and may be lawful to  and for the say William foul at any time or time during his natural life at  his will and pleasure to grant sell or demise the hereby grant premise or any  part thereof or by any deed or write under his hand and seal or by his last  will and testament in write sign seal deliver and publish in the presence of  three or more credible witness to revoke repeal and make void all every or any  the use and use estate and estate trust and limitation before raise create  limit or appoint and to declare and limit the same or such other new use as  shall seem most meet and convenient to the say William foul and then and from  brown thenceforth the estate and use before limit and appoint and so revoke  and repeal to cease and determine and be utter void as if the same have never  be make limit and appoint and that the say William foul shall and may dispose  of the same premise and every part and parcel thereof to such other person and  person use and use as he shall think fit any thing before mention to the  contrary in any wise notwithstanding by other indenture of lease and release  date the that and that of September make between the say William foul of the  one part and John tomb doctor in physic and Edward ware gentle of the other  part recite that the say William foul do real stand indebt to the several  person name in a schedule thereunto annex in the several sum therein mention  he as well for better secure the say debt and more speedy payment thereof and  in consideration of S as also for other good cause convey to the say John tomb  and Edward ware and their heir the say manor and premise upon trust that they  or the survivor of they or the heir and assign of such survivor shall out of  the rend and profit of the premise or by mortgage or sale thereof or by any  other way as to they shall seem meet raise so much money as shall be  sufficient to pay all the debt mention in the say schedule with such interest  as shall be due to the several person therein name over and above the several  annuity rend and rentcharge in the say schedule mention wherewith the same  premise stand charge and pay the same in full discharge of the say debt and  interest and after payment thereof and their own charge be satisfy that they  shall pay the overplus thereof if any and reconvey such part of the premise as  shall remain unsold to the say William foul or to such person and person and  to such use and use estate and estate as the say William foul shall by any  deed or write under his hand and seal attest by two or more credible witness  limit direct and appoint the same this indenture of release be attest only by  two witness and remain in the custody of ware the trustee till his death by  another indenture date the same that of September execute by all the say three  party recite the lease and release of the that and that of September it be  declare that it shall and may be lawful for the say William foul at any time  or time thereafter during his life at his will and pleasure by any deed or  write under his hand and seal attest by two or more witness or brown er p by  his last will in write attest by three or more witness to revoke repeal and  make void all or any of the trust and estate in the say indenture of release  of the that of September raise create limit and appoint of the say premise and  every part thereof and to declare limit and appoint the same to such other use  and use as shall seem most meet and convenient to he and that from thenceforth  the trust brown and estate so revoke and repeal shall cease and be void as if  the same have never be create limit or appoint and that it shall and may be  lawful for the say William foul to dispose of the same premise or any part  thereof to such other person and person use and use as he shall think fit on  the that of January William foul die without issue and have make no  appointment or disposition of the estate after the execution of the deed of  the trust of the whole estate descend to his heir at law but the deed of be  not then discover John Bethan who marry mary the daughter of Magdalen Casey  take advantage thereof immediate upon the death of William foul enter on the  estate and receive the profit during his life in November this John Bethan die  without issue male leave mary his widow and the appellant Catherine his  daughter whereupon the widow take administration to he and possess his  personal estate and by the connivance or permission of the say Edward ware who  all along act as agent for that family she as guardian to her say daughter  receive the rend of the real estate till her death which happen about July in  John tomb one of the trustee in the settlement of September die and in  November Edward ware the survive trustee in that settlement also die soon  after who death Christopher ware his son and administrator find among his  father write the say deed of September and apprehend they to be of consequence  to the family he bring they up to London to the respondent Lord Aston who  desire Mr ware to go with he to Mr Pigott to advice upon those deed on behalf  of the appellant Catherine and Mr Pigott have read the same seem much  dissatisfy apprehend they to be to the disadvantage of the appellant Catherine  and her family and find on enquiry that Edward ware have survive dr tomb he  say that by these deed the trust estate be vest in the heir at law of Edward  ware and that he apprehend Lord Aston and Mr foul have no power to act further  as trustee under the settlement of for that as the say William foul have a  power of revocation in the first settlement these deed of will be deem a  revocation of the same and thereupon ask Christopher ware whether he believe  his old brother Edward will assign his trust to Lord Aston and Mr foul who  answer that he certain will Mr Pigott desire he to prepare a proper deed for  that purpose accord by lease and release date the that and saint of August the  say Edward ware the son convey the premise to the respondent Lord Aston and Mr  foul and their heir upon such trust as he the say Edward ware may have hold  the same in the year a treaty be set on foot for a marriage between the  appellant on which occasion Mr Pigott be counsel for Lord Fauconberge and Mr  ware be counsel for the lady brown and the respondent the trustee and by lease  and release date the saint and d of August recite the intend marriage in  consideration thereof and of the great estate in land to which the appellant  the viscountess be entitle and which be therein mention to be settle on her  and the issue of her body to be beget and for settle a jointure on her if she  survive the appellant the Lord viscount in bar of her dower his lordship  convey certain manor and land therein mention to trustee for the benefit of  the appellant the viscountess and the issue of the marriage with a power  thereby reserve to himself to revoke all the use in this settlement with  consent of the trustee except the provision for the viscountess on the that of  August the marriage be have and thereupon the appellant Lord Fauconberge enter  upon the estate in question and receive the arrear and grow rend thereof  Thomas grove be one of the coheir of William foul and as such entitle to a  moiety of the say estate subject to foul debt accord to the settlement of the  respondent Fitzgerald in the year enter into a treaty with he brown er p for a  marriage with the other respondent Rebecca his only child and in consequence  thereof by article of agreement date the d of February between the say Thomas  grove and the respondent Mr Fitzgerald recite that the say Thomas grove in  coparcenary with lady Fauconberge be well entitle to a undivided moiety of the  say William foul real estate and that a marriage be short to he have between  the respondent Richard and Rebecca in consideration of the intend marriage and  for other consideration therein mention grove covenant to convey all his  undivided moiety of the say estate to the use therein mention and after the  marriage be have grove in performance of this covenant by lease and release  date the that and that of February convey his undivided moiety of all the say  manor and premise to trusitees and their heir to the intent that the say  Thomas grove and Rebecca his wife may during their life and the life of the  survivor receive a rentcharge of pound per and clear of tax and subject  thereto to the use of the respondent Richard Fitzgerald and his wife for their  life and the life of the survivor remainder to the trustee to preserve  contingent use remainder to their first and other son in tail male remainder  to their daughter as tenant in common in tail remainder to the say Thomas  grove and his heir on the d of April the respondent Fitzgerald and his wife  exhibit their bill in chancery against the appellant and the Lord Aston  Charles foul the say Thomas grove who be the administrator de good non of  William foul and the say Edward ware son and heir of ware the survive trustee  for a discovery of the say settlement and all other write relate to the estate  and to have their title to a undivided moiety thereof establish and for a  account of the rend and profit thereof from the death of William foul and also  of his personal estate brown and that the trust create by he may be execute  and that after the payment of his debt the party who have the legal estate may  join in make proper conveyance of at moiety thereof accord to the respondent  marriage settlement to this bill the appellant put in a plea and answer and as  to so much of the bill as seek to impeach their title to any of the estate  which be former the inheritance of William foul or of any sharer thereof or to  have a account of the rend and profit or any relief concern the same they  joint plead the settlement of the d and d of July and also the settlement of  August make on their marriage and by their answer say that before their  marriage or make the settlement of the appellant the viscount estate they have  not any notice of the deed of September nor till about eleven month after  their marriage and insist that the settlement of September be attest only in  the presence of two witness can not in any sort amount to a revocation of any  of the use or estate create or appoint by the settlement of July and that in  case Mr Pigott who be counsel for the appellant the viscountess in prepare the  marriage settlement have notice of the settlement of it be as counsel for the  respondent the Lord Aston and Mr foul and the appellant the Lord viscount do  by his answer insist that he be a purchaser or in the nature of a purchaser  during the joint life of he and his say wife of all the estate of the say  William foul by virtue of his marriage and the settlement by he make on the  that of December the plea be argue before the Lord chancellor king when the  same be order to stand for a answer with liberty to except to any thing  therein save as to matter of account and the benefit of the plea be save till  the hear of the cause the respondent reply and the cause be at issue witness  be examine on both side and publication have pass the cause be hear on the  that and that of December before the Lord chancellor assist by the master of  the roll and the Lord chief baron Reynolds who after have take time to  consider concur in opinion and on the that of June unanimous declare that the  deed of July be revoke by the deed of September and that on the death of  William foul the estate in fee subject to the encumbrance contain in the  schedule annex to that deed descend to his heir at law Thomas grove and mary  Bethan and that the moiety belong to mary Bethan be then descend to and vest  in the appellant the lady viscountess Fauconberge in fee and that the  respondent Mr Fitzgerald and his wife be entitle to the other moiety belong to  the say Thomas grove accord to the use of the deed of the that of February  brown er p and it be refer to the master to take a account of the rend and  profit of the estate contain in the say settlement of and receive by the  appellant the Lord viscount and also a account brown against all party of the  personal estate of William foul and likewise a account of the debt and  encumbrance on the estate and what be due thereon and to inquire into the  reality of the debt and whether any and which of they have be pay and by who  and out of what and the personal estate of William foul be in the first place  to be apply towards payment of the say debt and if that be not sufficient that  the residue thereof shall be satisfy out of the say rend and profit and if  those shall not be sufficient then a sale be decree of a sufficient part of  the real estate with the approbation of the master to satisfy the remainder of  the say debt and the residue of the land unsold be to be divide between the  respondent Mr Fitzgerald and his wife and the appellant and a commission be to  issue for that purpose and after such commission and partition the respondent  the Lord Aston and Mr foul shall subject to the annuity contain in the  schedule annex to the indenture of September convey one moiety to the  appellant the lady viscountess and her heir and the other moiety to such use  and trust as be mention in the deed of February and if there shall be any  surplus profit remain in the hand of the appellant the Lord viscount he be to  retain one moiety thereof to himself and to pay the other moiety to the  respondent Mr Fitzgerald and so far as the appellant the Lord viscount have  pay the pound per and to Thomas grove so far he be to have a deduction for the  same out of the plaintiff moiety and the rend in arrear in the tenant hand and  the grow rend and profit till such sale and partition be to be pay one moiety  to the respondent Mr Fitzgerald and his wife and the other moiety to the  appellant the Lord viscount and all deed and write relate to the real estate  be to be bring before the master on oath and after the partition make either  party be at liberty to apply to the court for direction touch the deliver back  of such deed and the bill as against the Lord Aston and Mr foul be dismiss  with S cost but without prejudice to the then plaintiff or the appellant bring  any new bill for a account of the rend and profit of the estate and the  defendant ware be to join in the conveyance if desire from this decree Lord  and lady Fauconberge appeal and on their behalf it be argue c Talbot W  Hamilton that his lordship have settle a great estate upon his lady and the  issue of that marriage every way adequate to the whole estate of Mr foul upon  the credit and in consideration of Mr foul estate be settle on heir and not  have notice of the release of September he ought to be consider as a purchaser  under Mr foul settlement of the benefit of the limitation therein contain to  lady Fauconberge and the issue of the marriage and that Lord Aston and Mr  Charles foul the trustee in the settlement of have in support of that  settlement obtain a conveyance from the heir of the survive grantee in the  release of ought to be consider as trustee for the appellant and therefore a  court of equity ought brown not to take away the legal estate from they in  favour of the respondent Mr and mrs Fitzgerald and in prejudice of the  appellant Lord Fauconberge a innocent purchaser that the lease and release of  September be execute in the presence of two witness only ought not to be  construe a revocation of the settlement of for the clause in which the power  of revocation be reserve be one entire sentence and the circumstance with  which William foul think fit to have his revocation of so solemn a settlement  attend be applicable to every method of execute that power it be unreasonable  therefore to imagine that he intend a express revocation shall not be good  unless those circumstance be observe but that a imply revocation shall take  place though unattended by any of they that the construction contend for by  the respondent suppose the first part of the proviso to grant sell or demise  any part of the premise to be a distinct sentence and a different branch of  power unconfined to the ceremony of execution in the presence of three witness  and to enable Mr foul by a grant which require neither sign or attestation but  only seal and delivery to revoke the whole settlement but those word if take  as a distinct sentence be incomplete and the construction put upon they be  neither consistent with the intention of the proviso itself or with brown er p  several clause in the deed for it will render the great part of the power  which follow these word nugatory and useless because there be scarce any thing  which by the subsequent part of the clause he be empower to do under the  restriction therein limit but what he may in effect do by those previous word  without any restriction at all further the clause for raise such sum out of  the estate as Mr foul by will or deed execute in the presence of two witness  shall appoint and the power of lease by deed or write under hand and seal  execute in the presence of two witness have in vain direct those ceremony to  be observe in the execution thereof if by the respondent construction Mr foul  may do both without observe either of those ceremony and it be impossible to  conceive that by the word grant sell or demise he intend to reserve a general  power of demising the premise even for the long term of year without any sign  or attestation of such lease when by the clause insert for that particular  purpose he have express confine his power of lease even for one year to the  ceremony of sign such lease in the presence of two witness on the contrary it  seem to be Mr foul intent not only to reserve a power of revocation but also  to confine the execution of it to particular ceremony in order to ascertain  what act of his shall or shall not be deem a revocation of the settlement  which he have so deliberate make and the ceremony of attestation by three  witness be with propriety applicable to the whole proviso and consistent with  all the other part of the deed it seem to be a natural construction that it  shall extend to the whole clause brown in aid of these argument it be say that  there be the less reason to consider the deed of as a revocation of the  settlement of because they be execute at a time when Mr foul may think it  proper to execute some conveyance to protect his estate and he seem  industrious to have avoid the solemnity of three witness lest that shall  operate as a revocation of the settlement of which it do not appear he have  any intention to vary but if the deed of shall be deem to be any revocation of  the settlement of yet they can not be a total revocation because it be admit  that those deed operate only as a imply revocation by reason of their  inconsistency with the settlement of and therefore be no further a revocation  than such inconsistency extend now the release have convey the premise in  trust to raise money for pay the debt mention in a schedule thereunto annex  and afterward to reconvey to Mr foul or such person and use as he shall  appoint without say to William foul or his heir or limit the estate in default  of appointment which be the case that have happen it be apprehend that the  release of be no further inconsistent with the settlement of than as to the  particular use specifled in that deed and consequent as to the rest of the  estate do not revoke the settlement of and that under these circumstance a  court of equity ought to restrain it from operate any further than to satisfy  the particular purpose to all this it be answer p York t Lutwyche that there  can be no pretence to make lady Fauconberge a purchaser neither be there any  purchase make by Lord Fauconberge or any conveyance or agreement for a  conveyance and without some of these circumstance plead of this kind have  never be allow in court of equity that this be a case the less proper for such  a plea because the appellant have no legal title nor any legal encumbrance to  protect their suppose equity the legal estate be in the trustee and the only  question be for who they be trustee if the right to the trust appear to belong  to the respondent it be apprehend a court of equity can not contrary to that  right compel the trustee to convey to the appellant and if the court will not  compel a execution of the trust to the respondent the consequence will be put  the estate absolute in the power of the trustee themselves who may at any time  recover the possession by ejectment that it appear from the whole tenor of the  settlement of that William foul intend to retain a absolute power  notwithstanding that settlement to dispose of the whole estate at his will and  pleasure by such conveyance as he shall think fit without confine himself to  do it in the resence of any number of witness or with any particular  circumstance this intention be show by the introductory part of the deed be  interweave with the consideration and pursuant thereto he take care to have  the three proviso insert in the body of the deed brown er p by which it be  make lawful for the say brown William foul at any time during his life at his  will and pleasure to grant sell or demise the premise or any part thereof and  the same proviso conclude with these general word that the say William foul  shall and may dispose of the premise and every part and parcel thereof to such  person and person use and use as he shall think fit any thing before mention  to the contrary notwithstanding that this last sentence be independent of the  precede branch and the different power reserve to Mr foul by this deed be  neither repugnant or useless for as some thing therein contain be of such a  nature as may make he desirous to keep it secret so it be plain he intend to  have it in his power to defeat that settlement by convey the estate to use  different from the use thereby limit without be under the necessity of refer  to it or take any notice of it and this construction be the more reasonable  inasmuch as power reserve to the owner of a estate have always be liberal  expound so as to answer his intention as be part of his ancient right and  dominion over the estate that William foul have by the deed of convey the fee  and inheritance of the whole estate to dr tomb and Mr ware upon trust and for  use utter inconsistent with those of the settlement of this latter conveyance  must consequent be a complete revocation of the former the legal estate be  vest in new trustee who can be seize thereof upon no other trust than the new  one and Mr foul have make no subsequent appointment of such part as shall  remain unsold after the particular purpose be answer a trust must therefore  necessary result for the benefit of he and his heir accord to the establish  rule both of law and equity consequent there can be no foundation for a court  of equity to control or abridge the operation of the deed of by construe they  to be only a revocation pro tanto mere to disinherit one of the coheir at law  it be therefore hope that the decree will be affirm and the appeal dismiss  with cost after hear counsel on this appeal on Friday the that of February the  follow question be propose to the judge videlicet whether the deed of be a  revocation of the deed of and if so whether the say deed of be a total  revocation or only a revocation pro tanto and the judge have on the next day  deliver their opinion seriatim upon this question it be order and adjudge that  the appeal shall be dismiss and the decree therein complain of affirm in a  manuscript note on this case it be say that after hear the opinion of the  judge upon the question it be propose to reverse the decree and that the  question be put it be resolve in the negative content Noncontents but no such  question or division appear in the journal jour vol p