case in chancery die loveliness December in the court of chancery in  Westminster hall come Montague some versus comrade BATHONIENSEM elsewhere the  Lord chief justice holt in this case wherein the earl of Montague and the  duchess of Albemarle and other be plaintiff and my Lord of bath and other  defendant I shall open the case very short as it stand upon the two will and  upon the two deed there be a will make in the year by Christopher duke of  Albemarle wherein there be a disposition of several part of his estate upon  his die without issue to several person but the main part and bulk of it be  give to my Lord of bath and in that will there be mention make of a particular  esteem and affection which the duke bare to my Lord of bath that he be the  near of his kinsman by his father be side and that he also be indebt to he for  many great act of friendship and office of kindness perform to he and his  father then there be in that will also a express desire the at the Title of  duke of Albemarle by the king favour may be confer upon the earl of bath and  that the old son of the earl of bath and so the old son of the family  successive shall be call Lord monk so that the name of Albemarle and monk may  with the king 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 be  so dispose of by his will of there be two deed make in the year a lease and a  release the release do recite this will but in the recital of it there be some  difference from what be in the will it self some variation from it in this  deed it be mention that the intent and design of the deed be to dispose of the  estate accord as be in the will and whereas it may be think strange that the  duke by his last will which by that deed he do confirm and not intend to  revoke shall give away his estate from the heir at law therefore for the  satisfaction of the world the duke do declare the reason which have be  frequent mention and then the deed dispose of the estate some to the Greenvils  some to the Clarges but the main and bulk of the estate he settle upon my Lord  of bath but in this deed there be 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 write under hand and seal in the presence of six witness  whereof three to be peer of the realm and then to limit new use case in  chancery then he make his will in the year and therein he give his estate in a  different manner that be the bulk and main of it be give instead of my Lord of  bath to Mr monk who he suppose to be his kinsman and desire that the name and  Title of baron monk may by the king favour be bestow upon he in case he  himself die without issue now the question be whether or no this will in have  revoke this deed make in in equity for there be but three witness to this will  and not one of they a Peer so that in law it be very plain it be no revocation  at all it can be a good revocation there because the power be not pursue the  circumstance be not observe case in chancery er p there be neither the tender  of a shilling nor six witness whereof three peer nay not only so but here be  but three witness in all and not one of they a Peer I be of the same opinion  with my Lord chief justice of the common plea and my brother Powel that this  be no revocation in equity and that there ought to be no relief have by the  devisees of the will of against those that claim by the deed of these thing be  to be premise as grant and not to be question first that the will of be a good  will there be no manner of dispute to be make of that second this deed of  release that be make in be a very good deed and there be no manner of dispute  to be make of that neither for if there have not be a verdict in the case yet  if they come to have the opinion of a court of equity touch relief in equity  about this deed it ought to be take to be a good deed in law or they be not to  come hither for relief against it and as this deed be admit to be a good deed  so in this debate all those circumstance that appear in the deposition be to  be admit to be true in this Cause I do not say that they be never hereafter to  be controvert but now upon this debate they be to be admit true as first that  sir William Jones his hand be to the perusal and approbation of the proviso  and it be his write second that he be a witness to the execution of this deed  and three that this be true which errington swear about the abstract of this  deed make by sir Thomas stringer which be main circumstance about the deed and  controvert now must be take for true in the consideration of this Cause and  then a three thing that be to be admit without any contradiction too be that  this will of be a good will the Cause stand thus and all these thing be take  for grant the question I say will be whether those that claim by this will of  can have any relief against those that claim by the deed of and I think there  ought to be no relief but those that claim by the deed of have a good Title in  equity as well as in law case in chancery I shall not mention any thing of the  evidence that have be give or insist upon to support the deed nor now answer  any of the objection make against the truth of it for I tell you first I take  it for grant that it be a good deed and a true deed without all dispute but to  the intent it may comprehend all the matter that I think be any way  considerable and fit to be insist upon I shall speak to four general head  first I shall consider whether upon the frame and manner of this deed of there  may be any ground of relief for the plaintiff against it second whether there  appear upon the proof and deposition in this case that there be any undue way  or manner of obtain this deed from the duke or any way or contrivance or  management for the contrive it in be afterward which may produce a ground of  equity for the advantage of the plaintiff three shall consider the  circumstance and condition of the party that be in this Cause those that claim  by the deed of and those that claim by the will of and whether upon that  account there can be any equity raise in this Cause and fourthly I shall  consider the person of the duke of Albemarle and the particular circumstance  he be under at the time of make this will in and whether by reason of he from  who the estate proceed or the circumstance he be under there will appear any  ground of equity in this case the first consideration I say will be whether  upon the frame and manner of this deed there be any ground of equity for the  plaintiff against it there be several thing under this head that be insist  upon by the counsel for the plaintiff as first that this deed of do partake of  the nature of a will because it recite a will and it be make to confirm a will  and therefore shall be revocable in a court of equity as a will shall be in a  court of law second that it pretend to recite the will of and there be several  mistake in the recital and very great variation from it three that there be  several disposition different from those in the will which it pretend to  confirm now for the first to maintain that when a deed recite a will and to  say it self be make to confirm that will therefore this deed shall be  revocable in its nature in equity case in chancery er p as a will be at law I  must needs say be a notion that I never hear start before therefore for that I  must appeal to you who be constant practiser and attendant here whether it be  not a notion altogether new and to I as it be a new notion so it be very fine  and seem impossible to be support by any reason but must produce very strange  absurdity it be not to I to be reconcile with any reason of law or equity as  far as I understand any of either case in chancery for to say that a deed be  revocable because it relate to a will be first to contradict the nature and  essence of a deed for a deed take effect immediate upon the seal and delivery  and be impossible to be alter from what it be and have in it or to be revoke  by he that make it but because it relate to a will it shall be revocable as a  will be that I say be a mere finespun strange notion not at all agreeable to  reason next such a construction and strain as this in equity must overthrow  the intention and design of he that make the deed for when a man have make a  will which be not consummate till his death and after that make a deed and  limit the estate in such a manner as it be dispose of by the will what do this  man mean but that those estate which be or arise by the will upon his decease  shall have immediate effect during his life and whereas self it may not be so  convenient to leave his estate whole to which may so easy be alter it be his  mind and intention that it shall be make more firm by a deed which be more  permanent next it be a mighty strain to make a deed revocable as a will for  then you must first S t up again that will which be thereby revoke for you can  imagine but that when a deed be make though to confirm a will the estate limit  thereby do arise by the deed and the will be revoke by the deed so you set up  a will that be no will in law and that shall control a subsequent deed which  destroy that very will which be strange and contrary to all rule of law and  reason there be some case quote wherein a deed shall control a will as dyer it  be say if a man make a feoff to the use of his will which be annex at that  time to the charter of feoff that that will be revocable notwithstanding there  be a express application in the deed to that will it self and so the use arise  by the deed not by the will and yet though this deed have relation to the will  that will may be revoke this indeed have the term put in the case but in  reason be no way applicable to it when a man make a feoff and annex his will  thereto there the design be that the estate shall arise not immediate upon the  feoff but attend upon the will but if a man make a deed of feoff and say it  shall be to the use of such person and for such estate as in his will or as he  shall give accord to the will there though the will do mention the name and  limit the estate the use do not arise by the will but by the deed for though  the will be no part of the deed yet when the deed do refer to the will and the  will have limit the estate it be as much as if all the limitation have be  comprise in the deed and I take it that a deed be not revocable because it  have a immediate effect and can be no otherwise revoke but accord to a power  reserve in the deed it self and that be Hussey case more a man make a will and  he make a feoff to the use mention case in chancery in the will though the  will be revoke as sure it be yet it be a sufficient declaration to the use it  be further urge for the support of this notion what be say in Hobart in the  earl of ormond case the case be put a little short in the book a man suffer a  common recovery to the use of such person and person and for such estate and  estate as he shall dispose of and to in his last will this be a case in  Ireland and before the statute of use be make there and so we must look upon  it in England as a case before the h and then there be a feoff make he remain  beneficiary and use in fee in the mean time for he have a power by will to  dispose of the use accord as be express in the deed then he make a deed in  hisLifetime and give away the inheritance of this use and afterward make his  will now here be a deed that give the inheritance of the use away and here be  a will that do control and alter the disposition of this deed this be the use  that be make of this case now in answer to that suppose it be so this will be  but a execution of that power which proceed from the deed for when a man make  a feoff for the case in chancery er p use of such person and for such estate  as he shall limit by his will it be not the efficacy of the will that dispose  of the estate but it be by virtue of the deed so that the deed in his lifetime  be no execution of the power reserve in the first deed which be only to do it  by a will but I must say this further to the case of the earl of Ormond that I  do not take that opinion of the two judge Hobart and Doderidge there deliver  to be law and there be other two judge Montague and Hutton that be of another  opinion and other be of their mind and it do not come to a Judicial resolution  and my opinion be this that if a man make such a feoff before or after the  statute of use he have the feesimple of the use vest in he in the mean time  and therefore have a power to dispose of it and if he do by deed in his  lifetime dispose of it that be a good disposition and the will shall not  control it for he be as much master of the whole estate both before and since  the statute of use as if he have make a feoff in fee to the use of himself and  then a absolute disposition of this deed do extinguish and destroy the power  if he from who the estate move do reserve a power in any particular manner to  limit any estate or estate by his will the whole feesimple be in he and no Act  he do do to dispose of the estate will hinder he from execute of that power  and as for this I shall quote you but one case and that be in lee Broads case  a fine be levy to the use of such person and for such estate as the cognizor  shall limit and appoint by his last will and so the case come home to this  case he after this covenant to stand seize of these land to the use of his  second son and his heir and then make his will and dispose of the estate  therein accord to the power the question be which of these disposition shall  take the place the deed or the will the will be accord to the power reserve  upon the case in chancery first fine and the deed intervene before they come  to execute this power it be there hold that have make a disposition of the  estate by deed though by a covenant to stand seize that shall take effect and  the will though make accord to the power come too late to execute it so that I  think none of these case that have be mention for this purpose be applicable  to the case in question nor argue or prove any thing material for that which  the plaintiff counsel intend they for ay but say they this will of and deed of  make but one conveyance and then the will that be the principal that shall  govern all the rest now this be a notion fetch from the court of law but very  improper apply in this case as I think for this will be revoke by this deed be  no conveyance at all where several act make but one conveyance every one have  its distinct operation oh carry on the main design as a lease and release the  lease convey the possession for year the release convey the inheritance to the  possession by way of enlargement so a fine and recovery and deed to declare  the use make but one conveyance but each perform its particular part the fine  convey the freehold to one man and upon the recovery it S convey to another  and upon the limitation of the use it be convey to a three all be preparatory  act necessary to complete the conveyance of the inheritance whither it be at  first design but how will they make a will that have no subsistence to be one  conveyance with a deed that before destroy that will I can see how nor be it  reconcilable with law or reason so that for that matter I think they have no  ground to insist upon this point that this be a deed relate to a will may be  revocable in equity as a will be at law but to go on to the next this deed do  say it be make and intend to confirm the will and yet make several recital and  limitation contrary to it why suppose it be that it do recite the will true  and say the will dispose of the estate so and so and then add that it be make  to confirm the will but yet dispose of the estate quite otherwise than the  will do shall this avoid the deed in equity or make it to have another  consideration than it else will have the recite part of a deed be not at all a  necessary part either in law or equity it may be make use of to explain a  doubt of the intention and meaning of the party but it have no effect or  operation but when it come to limit the estate there the deed be to have its  effect accord to what limitation be therein set forth and that be plain and  full without any manner of contradiction whatsoever now because a deed be  repugnant in some part that be material to what be immaterial be that any  ground in equity to set aside this deed or make it more liable to a revocation  case in chancery er p than if they have be consistent that seem strange then  there be Misrecitals and mistake which I take to be mistake of the clerk and  shall these Misrecitals of the will in the deed destroy the effect of the deed  when the meaning and intention of the party be most manifest and clear how the  estate shall go there be no reference in the limitation of the deed to the  will but only in the recital and there be mistake now case in chancery if the  limitation of the will and deed be not apply to the Misrecitals in the deed  then those Misrecitals can hurt the limitation in the deed if so be the  limitation in the deed have be general to such as be before recite to have be  limit in I he will then there have be some ground to infer that these mistake  shall be a foundation for equity to rectify those mistake for that suppose the  recital in the deed contain the disposition of the estate by the will be right  and will come too late at the time of the limitation to recite they and that  be a mistake that may be a good ground in equity to relieve against the  mistake but when it come only by way of recital to be dispose by the will one  way and then do in express word limit it a contrary way the intention be plain  that it shall go accord to the limitation in the deed and there can be no  foundation in equity to set it aside the rule of law be Benignae are  interpretation chartar and I suppose there ought to be a great deal more  indulgent interpretation of they in equity to maintain the intention of party  so that as to that first point concern the frame and manner of this deed and  the contradiction to and Misrecitals of the win in it there be no foundation  of equity to relieve the plaintiff against the deed unless the power of  revocation in the deed be legal pursue the next thing be whether there be any  thing prove in the manner of obtain it from the duke or mortgage or continue  of it after it be obtain be any foundation for equity to relieve against it  and for my part I see none first I do not see any manner of evidence to prove  any indirect practice for the obtain of this deed from duke Christopher the  most that can be make of it be but bare suspicion and indeed that a very  slender one too but say they can you prove the duke ever read it or have it  read to he that be a strong objection when it be prove to be before witness  and so many sure that be but a slender ground of equity the not read of it but  nothing of surprise or ignorance in the duke of what he do in it ought to be  suppose because sir William Jones who be prove to be the duke be counsel be by  and a witness to it I tell you at first sir will Jones hand to be to the  draught and deed must be admit because I take it for grant that this at law be  a good deed and if I do not take it for grant that that be sir William Jones  hand and he be a witness to the deed I shall not take it for a good deed but I  meddle not with the point of fact but take the fact to be grant to bring the  Judicial point in question so that it be his hand and he be a witness to this  deed then second it must be imagine that when duke Christopher make this deed  he do it with some design or for some purpose or other and if so you can  imagine that the duke be at all surprise therein but that when it be execute  it be accord to that design and purpose case in chancery next sir Thomas  stringer who be the duke be counsel to peruse and amend the draught as appear  by his own hand swear by his son and his man to imagine then that a man shall  be surprise unto the make of a deed when his own constant counsel do peruse  and amend the draught and the counsel he use particular to advice with be by  at the execution and a witness to it be to say a man be surprise when he have  the advice of counsel about it and they be at his elbow at the execute of it  now I must confess I be to seek and not well know what be a fraud in equity  that will avoid a deed which be a good deed at law the case of Bodvile and win  and Robert vide Rep in chancery I part mention by my Lord chief justice and my  brother Powel that speak the last day this Cause come on be I think a case of  great authority in a court of equity because it have a great transaction both  in this court and in the house of lord before it come to a resolution or  result I shall put the case in short as it be here in court Mr Robert son to  the late earl of Radnor marry the daughter of Mr Bodvile Bodvile have make a  will and give his land to the child of his daughter in tail and after this he  make another will whereby he give one part of the estate to Mr case in  chancery er p win and another part to a remote kinsman it do most plain appear  in the deposition of this case that this will be obtain by great fraud and  circumvention that be win get into his acquaintance by pretence of some little  office of friendship and kindness he get he away from his friend and relation  and during his sickness he do by false story draw his affection from his  daughter keep he in secret place that no friend may come at he and while he be  so secret and wrought upon be this last will make whereby he give his estate  away from his child to a stranger all these piece of practice be apparent  before the court at the hear of this Cause which be hear by my Lord Clarendon  assist by who all unanimous declare that this be a will obtain by fraud and by  practice and that there be great reason if they can to relieve against it but  they search precedent but can find none that will come up to the case  thereupon for difficulty there be advice take about it in the house of lord  and there upon consideration be a order make by way of advice to the ld  chancellor that he will proceed to do justice to either party though there be  no precedent find to govern the judgement afterward this Cause come to be hear  again June when my ld Chan be assist by my ld Ch Ju Bridgman my ld Ch bar hale  and Mr just raynsford do declare that there can be no relief though as it be  say before it be apparent a will obtain by fraud and this to the prejudice of  the heir at law who have never offend or give he any cause to disinherit her  so the bill be dismiss but the party complain in parliament be relieve by the  legislative power by a Act of parliament now beside that there be evidence of  ill practice in that case case in chancery but in this I say I find none this  be so great a authority and do show the wariness of a court of equity that I  think none can be great equity will not relieve they but they be put to seek  their relief by a law make on purpose but I will suppose now in this case that  when my Lord of bath do understand the kindness of duke Christopher and know  of the will of and know the inconstancy of the duke be temper and other  circumstance in the family and the revocableness of a will shall have apply  himself to the duke and tell he it be true you have be so kind as by your will  to bequeathe I a great part of your estate but you may be prevail with on a  sudden or by some artifice or other to alter this will of you and you may be  surprise into the do of it pray will you make a more solemn settlement to  confirm this kindness by a deed and have prevail to get he to do it suppose I  say he have do so though I find no evidence in this case of any such thing  suppose he have be employ in the whole transaction of such a deed be this  unlawful or be it a harm No it be very innocent he may lawful do it and if he  have opportunity he may prudent do it but I say I find not so much as that in  this case but this deed be fair obtain from the duke whether it be by the  advice desire or interposition of my Lord of bath do not appear or whether it  be the duke be own voluntary Act though I think it be not material whether it  be the one or the other but it have be say that when duke Christopher do  design to alter his will and for that purpose send for my Lord of bath to  bring the will of which he have in his custody my Lord of bath shall have tell  he of this deed too and therefore the conceal of the deed of from duke  Christopher be a kind of fraud and not make 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 have consider the proviso in the deed he will have take effectual  care to have have a good revocation in all the circumstance and that he do not  so revoke it must be impute to the concealment of this deed from the duke by  the earl of bath so be the case of Mr Clare at the suit of the earl of Bedford  which be open the last term a man that stand by and see a cheat which may have  be prevent by his discovery shall not take advantage of his own wrong and  profit by such concealment but do it appear in this case that my Lord of bath  know to what purpose the duke send for be will or how or in what manner he  will alter the settlement of his estate why must he be bind to take more  notice of this deed to the duke than the duke himself it be the duke be own  Act and not my Lord of bath and why shall he give he notice of his own Act the  rule of law when one be oblige to give notice to another be this when the  thing lie more in the knowledge of the one than the other and he can come case  in chancery er p to the knowledge but by his mean but when one man have reason  to know and do as much as the other he be not bind to give notice to that  other case in chancery beside it do not appear as I remember for it be some  time since this Cause be hear that my Lord of bath do know to what purpose the  duke do call for his will and the deed and will be possible both in the  custody of the duke for though at the time of the execution of the deed it be  deliver to my Lord of bath yet that be only for the due execution as a deed  for my Lord in his answer say he know not where it be afterward till deliver  to he by the duke with the will under one cover some short time before he go  abroad and so there be great reason to induce the belief that it be in the  duke be custody then as to the objection of secrecy it be keep secret all  along and no body can give any account of this deed take it for grant it be so  shall a settlement in a family where the nature of the thing require secrecy  because it be keep secret be set aside for secrecy it ought to be keep secret  and that be no objection at all person do not usual intend that all the world  shall know how their estate be settle but say you at least here be a general  presumption take all together upon the circumstance of the whole case that  there be some kind of management in conceal this deed now in a court of equity  shall presumption be sufficient to find a decree upon if that shall avail in a  court of equity it be a easy matter accord to the judge faith to presume a man  out of his estate there be presumption of several sort some be violent and  some probable a violent presumption that such a man have do such a fact must  be when a fact be do and no other can be think of to have do it as if a man be  kill in a room and another man come out of the room with a sword bloody in his  hand and no body else be in the room here be a plain fact do and though no  body can swear they see this man do the fact that he kill he yet from this  evidence there be very strong proof but a probable presumption alone be no  proof to rely upon where indeed there be some proof of witness positive and  the presumption be probable that be add thereto it may be a good fortify  evidence but it signify very little of it self for a foundation so that I  think there be no proof or evidence that my Lord of bath do surprise the duke  or that the duke be surprise in this matter or that there be any indirect mean  use to conceal it from the duke and so I have do with the second head that I  at first propose therefore three I come to consider the person that be concern  in this Cause that be those that claim by the deed of and those that claim by  the will of those that claim by the deed of be relation of duke Christopher  without all question my Lord of bath that be entitle to the great part of this  estate be a very near relation and a person that have do many kindness for the  family have be constant assist to the duke in his business and the other be  near relation too case in chancery then for those that claim by the will of Mr  monk that claim the main of the estate be in the will call cousin but it be  plain if at all he be not so near relate so that when in respect of the person  that claim by contrary voluntary Settlements there be a even equality of  relation and no difference of consideration much more when there be a  inequality he that have the best Title at law must carry the estate for what  be it that make the difference but the difference of the consideration as in  the case of a deed in consideration of blood and a afterdeed to a purchaser  for a valuable consideration the last shall take place as the best  consideration but for revoke a voluntary settlement in favour of a subsequent  one where there be no difference between the party as to the consideration I  think have no ground in reason there be as much equity for the one as the  other it be perfect at large and I take it to be a constant rule that where  one party have no more equity than the other the law must take place and that  in this case be manifest for my Lord of bath by this verdict equity ought not  to take it from he this principal be the foundation of the decree in that case  of smith and Ashton case in Chan I part that have be likewise mention and urge  before case in chancery er p there be a power under hand and seal to be attest  by three witness and to charge the estate with portion for young child so it  be a limit power then he make a revocation for advantage of young child but  not exact pursuant to the circumstance of the power this be hold good in  equity and all the reason in the world it shall because a man be oblige to  provide for his young child and it be against all justice and reason to make  such a settlement upon the old son as to send all the other child a beg be  under the same natural obligation to provide for the one as the other  therefore because of that natural obligation equity have be indulgent to  support such provision because the first settlement that disable he for it be  wrongful and injurious and contrary to all equity and then in such case equity  be very indulgent but I will put this case a man settle all his estate upon  his young son for life with a power to revoke by a deed seal in the presence  of three witness without more ado he make his will and dispose of his estate  to his old son whole and that will be attest as put it before the statute by  two witness be this a good revocation in equity I say no for the one be as  near relate to the father as the other the consideration be equal the one be  as much a son as the other and therefore there be no great difference between  they and the young son who have the estate by law shall enjoy it though  afterward it return back to he that be the old the four and last point be this  whether in respect to duke Christopher and those circumstance that attend he  there be any reason to relieve against this deed in equity and here case in  chancery first it be say if a man make a feoff with a power of revocation  under such circumstance and do make a revocation where all the circumstance be  not observe be he such a owner still of the estate as that equity shall  support the disposition I say no for that be to set up equity in direct  opposition to the law for when a man restrain himself by a particular power  and have no legal right to dispose of this estate but by exact pursue that  power equity can enlarge that right or power legal you agree he can for if he  can then be there no reason for implore the aid of a court of equity and there  be the great reason he shall be oblige by the rule of law in a court of equity  because it be a law that he have put upon himself and that be the equity of  the legal obligation because it be suppose to be make by his own express or  imply consent by his Representative to all law here be a man that have make a  deed whereby he have actual restrain himself from dispose of his estate but in  such and 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 circumstance be not strict  observe you may allow a man to revoke a voluntary settlement when there be no  power reserve to he in the deed so to do and that I take it no one will be so  hardy as to affirm a man voluntary make a settlement to the use of himself for  life and after to other use and reserve no power of revocation at all he can  revoke this no not in equity and the reason be the same as to the power  reserve where it be not pursue for he have no other right to do it but by the  power and it be as if he do it without a power unless he make a due use of  such a power as he have it will be manifest inconvenient if a court of equity  have such a latitude in power of revocation for it be not sufficient to say it  be unreasonable a man shall be restrain when a man will restrain himself nor  do I see what reason there be to say it be imprudent indeed to argue thus be  to make a man less proprietary of his estate than the law have make he that he  shall not settle his estate in such a manner as he please to order for himself  a man at this rate be never master of his estate he make the first settlement  as owner and it be no matter whether he have a reason for make it or no stet  pro ration will but then when he have so do both law and reason bind he m to  observe it and there be no reason for a court of equity to avoid it I must  confess court of equity will have enough to do if they be to examine into the  wisdom and prudence of man in dispose of their estate and if they be not  discreet but foolish do therefore to set they aside there will need more court  of chancery than there be to dispatch the business of equity in this point but  be a man wise or unwise if he be legal compos chin he be case in chancery er p  the disposer of his own property and though he do not case in chancery dispose  of it so discreet as a judge or a great lawyer will do there be no reason  equity shall interpose to alter it beside 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 surprise  and prevail 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 a inconveniency that may arise by my dispose of my estate upon a  surprise I will restrain myself and settle my estate so and so that if there  be a deliberate intention in I to alter it I may solemnly execute such  intention I will therefore have so many witness and those of good quality that  if they find I about any such action may advice I in it and prevent any  apparent surprise into the do of any action that may be foolish rash or  prejudicial for that reason I will bring my self under such and such restraint  and when we see a thing do that may have a good reason give for it as there  may be for this circumscribe power to restrain from rash sudden action it be  to be presume that it be do upon good reason and therefore the pretend  unreasonableness of set the owner of a estate by himself mention at the bar be  no argument against it for it may be rather and that be rather to be presume  upon very good reason than upon no reason at a now I think it be never yet  determine or settle in a court of equity that a revocation that do not pursue  the power be good in equity it have be settle and decree not to be good and  that be the case of Arundel and Philpot which come first into the king bench  and then into chancery and afterward into the king bench again and there it  have its period a woman make a voluntary settlement upon a friend with a power  to revoke upon the tender of a guinea and upon some fallingout or quarrel that  happen between they she make another settlement upon Arundel at first in the  king bench they can not prove the tender of a guinea and so the revocation be  not good at law therefore they come into a court of equity to be relieve it be  hold that no relief shall he have in the case although there be a proof of  provocation give a quarrel and fallingout and so there may be some reason to  revoke but no reason to revoke otherwise than accord to power so the bill be  dismiss afterward upon a trial at law that matter be substantial prove that in  the heat of the provocation the guinea be tender and consequent a good  revocation and that I look upon as a full authority that there can be no  revocation in equity where it be not a good revocation at law unless there be  a particular intention in the party to revoke which he can not effect pursuant  to the power by fraud or accident the case of thorn and Newman I take to be  good at law and therefore to be sure good in equity there be to be a tender of  d at a day in the MiddleTempleHall the d be tender at case in chancery the day  but not the place and accept that be before my Lord chief justice hale and the  party nonsuit upon it for upon a condition to pay money at such a day and  place the money be tender to the person at the day though not at the place  that tender to the person be good be a case of money but it be not so in a  collateral condition for do of any other thing and though it have not be in  that case good at law it may be hold to be good in equity upon another account  because there be child in the case and it be to make provision for they now I  do acknowledge that a power of revocation not well execute at law may be in  equity in some other case as where a man have such a power have a real  intention to revoke and his intention be know but he be prevent by a  particular accident and surprise when his design be so to do but can not  perform that design as by reason of sickness or that it be to be do in a place  where he can not go if any accident obstruct that intention it shall be look  upon as good and shall prevail but now in this case of the duke of Albemarle  it do not appear that he have any such intention of execute his power it be  true he make his will which be a quite contrary disposition of his estate that  be a evidence of his intention to make a new will but not to revoke this deed  he be no way hinder by any accident or irremovable impediment from execute the  power accord to the circumstance case in chancery er p he be in the place  where best of all throughout England he may have have three peer to be witness  of it the will be execute in London at sir Robert clayton house and there be  then two peer in the house therefore since he have a opportunity to do it well  and will not do it this can never be construe a good revocation in a court of  equity and I think true that any such construction will induce many absurdity  for first it be to set up a power in a court of equity in direct opposition to  the court of law and so let a man lose in equity for no other reason but  because he have restrain himself at law by a law of his own make second it be  as much as to say that because a man may dispose of his estate one way by law  therefore in a court of equity he shall dispose of his estate any way that be  a very strange but a true consequence of this doctrine because a man settle  his estate such a way with such a power to alter it in such circumstance  therefore he shall do it any way at this rate tenant in tail may dispose of  his estate without a fine in equity because he may have do it at law with a  fine for the same equity there be in both case so a copyholder of inheritance  may in equity dispose of his estate without a surrender because he may do it  at law by a surrender case in chancery three it be to enable a man to give  away more than he have in he for he have no more in he than accord to the  power reserve to himself and fourthly it be to frustrate the intent and design  of all Settlements whatever so that I think there be no reason at all for this  court to let a man lose that have thus restrain himself unless there be some  special reason in the particular case for the sake of which a man ought to  have his case vary from the ordinary rule then let we consider next the  circumstance that the duke be under at the time of make this will you that be  for the plaintiff say that he have forget this deed and therefore it be a old  and forget deed it shall not have any regard in a court of equity it not be  take any notice of by the party himself first I pray consider whether the  evidence do not prove the quite contrary it be a settlement make very solemnly  it be very well attest by six witness person of consideration it be do with  deliberation and do but in the will be in it be not to be presume that the  duke do or can forget a settlement so solemnly and deliberate execute I say it  be hard to presume it but rather the contrary that he do not forget it beside  though he have forget it sir Thomas stringer who be so instrumental about this  will have not forget it for he make a abstract of it about that time with the  very date in it and I take it the memory of the counsel in such a case be the  memory of the client suppose a man make a purchase and he carry the deed of  the Title to counsel and have a trust in the deed and acquaint his client and  yet he will purchase shall equity relieve it may be the counsel oversee this  trust and the purchaser be call to account about it say he I have no notice I  know nothing of any such trust I be a purchaser for a valuable consideration  and it ought not to affect I but then they come and prove that the deed of the  Title be carry to counsel they see this trust or have a opportunity to see it  then I take it notice to the counsel be notice to the client and the man that  pay the money must lose the estate so here sir Thomas stringers memory be the  duke be memory but pray how come it to pass that forget of a deed be a ground  to revoke in equity must the goodness and validity of a deed depend upon the  memory of he that make it memory be slippery but a deed be permanent and make  to abide for ever because man be apt to forget what they have do therefore  shall their deed have no more effect in a court of equity than if they have  never be do at all Q this I confess be very new and strange doctrine to I when  a thing once come to be put into write we say it be never forget litter scribe  to stay but then true they say it be inconsistent with the honour of the duke  of Albemarle that he shall make this stir and do about case in chancery this  will and pretend such kindness to Mr monk and desire a Title of honour for he  and yet not intend to revoke this settlement that stand in the way the other  they say how be it consistent with the duke be honour to intend to revoke it  when there be such a case in chancery er p friendship between the duke and the  earl so many service and obligation perform by the earl such a trust and  confidence repose in he even to the last as it be plain there be how come this  to pass but so it be they be act very much inconsistent I confess but for  person honour in judge of cause we have nothing at all to do with they for my  part I see no reason in the world that the duke have to alter his mind as to  my Lord of bath there be no appearance of any unkindness or displeasure  conceive by the duke against the earl but a entire trust and confidence to the  very last as be evident by the order of the key of the evidenceroom to be  deliver to he when he go away and to consult with he upon all occasion but  withal I do not know what the meaning of it shall be if he real intend any  effect as to the will of which without all question be well prove and be it  not for this deed will be a good disposition of the estate yet though it do  contradict the deed of I can but take that to be a very good deed and not to  be set aside by this will I have nothing further to consider in this case nor  be we to make presumption and then to make inference from thence we be to  judge upon the fact as it appear in the deposition which be plain and clear  and upon these we be to determine our opinion and nothing else that be dark  and that we can come at further than conjecture there have be other thing say  in the Cause which I omit on purpose because I will mention only those that be  most material upon the whole matter I be of opinion there ought to be no  relief in this case against my Lord of bath and those thatclaim by the deed of  Lord keeper I shall first take notice how these cause stand in court and who  be the party in judgement before the court here be three bill one in which the  duchess of Albemarle be plaintiff and since the intermarriage my Lord of  Montague be also plaintiff against my Lord of path and other defendant and  this bill set out the late duke of albemarle marriagesettlement and his will  of with the solemnity both of prepare and execute it and do complain that the  earl of bath set up another will and a deed in and whereby he seek to  frustrate the disposition of the duke be estate by the will of and the bill do  allege that if any such deed be ever execute by the duke case in chancery  which they have reason to doubt and do not admit they believe the same be  impose upon the duke by surprise and not fair obtain and by fraud be conceal  from the duke and ought to be set aside in equity though the power of  revocation in the say deed be not strict pursue because his intention appear  to revoke it and dispose of the estate otherwise by make the will in and if it  shall not be set aside then the duchess ought to have the land limit to her by  that deed and the rentcharge of pound a year over and beside the jointure  settle upon the marriage and confirm by the will of and the will of ought to  stand good as to the personal estate and legacy therein and so pray to be  protect in the enjoyment of the personal estate and specify legacy give to the  duchess discharge of the duke be debt there be another bill bring by  Christopher and Henry monk which complain of my Lord of bath and the other set  up this will of and deed of and I think in the same word or to be sure to the  same effect with the other bill and pray that both will and deed may be set  aside and the plaintiff may enjoy the benefit and estate give they by the will  of then there be a three bill of my Lord of bath Mr greenvill and sir Walter  Clarges in which they set out the will of and the deed of and the continuance  and Constancy of the duke be friendship and trust to the time of his death and  complain that the duchess and other defendant set up the will in and do  pretend that amount in equity to a revocation of the deed of and this bill  pray that the personal estate may be apply to pa that the duke be debt in  discharge of the real estate which they pray may be confirm to the plaintiff  in that suit and a discovery of the write about the real estate and that they  may be bring into court and deliver up to the use of the plaintiff these cause  be first hear before the lord commissioner so long ago as the case in chancery  er p that of July then be there a decree make that thePersonal estate shall be  account for and apply for the payment of the debt but before the court will  deliver any final judgement as to the real estate they order a trial at law to  he have in a ejectment wherein the duchess and Mr Christopher monk be the  lessors of the plaintiff and the earl of bath Mr greenvill and sir Walter  Clarges to be defendant to try the Title to the real estate and the plaintiff  be only to insist upon the will of and the deed of so that as the defendant  right upon the say will and deed may be fair try and all exhibit be to be  leave with the master three week before the trial for either side to inspect  take abstract and copy as they shall think fit case in chancery accord to this  order in the Michaelmasterm after there be a trial at the king bench bar and  upon that trial a verdict pass for the defendant in the ejectment the earl of  bath c upon the will of and deed of after the trial these cause come to be  hear again before the lord commissioner about a year and a half since at that  time there be no complaint make of the verdict nor any motion for a new trial  but after the counsel have be hear several day the court take time to consider  of their judgement and before judgement one of these cause abate by the  marriage of my Lord of Montague and the duchess and by that and other accident  the Cause have be delay till the late hear before the court assist by my lord  the judge who have deliver their opinion and now the cause stand for the  opinion of the court upon what appear in the plead and proof and what have be  so large insist upon on either side upon which the verdict be at law for the  defendant I must take it as my lord the judge have already declare not only  that these deed of lease and release of the that and that of July be duly seal  and execute by the late duke of Albemarle but also that they stand still in  force and unrevoked at law for if they have not be so the verdict can not have  be as it be for the defendant therefore as that must be take for grant that  these be good deed in law the only matter at present for the consideration of  the court be whether upon the debate of this Cause there be sufficient ground  in equity for this court to interpose in the case so as to set aside these  deed as not good in equity or revoke by the will of or no and I shall as to  the matter of the question conclude my opinion the same way with my lord the  judge that have deliver they before and with respect to this matter I shall  here consider who the party be in judgement before the court and what have be  allege as reason and ground to induce the court to set aside this deed in  equity here be no purchaser in the case not creditor no child unprovide for  but all the party claim by voluntary conveyance on the one side and the other  so that at least they stand equal or if there be any circumstance as to the  person that have any weight it be on the part of my Lord of bath there have be  several thing insist on by the counsel for the duchess and Mr monk as ground  whereon they will find that equity which shall impeach this deed of I will  mention they as I apprehend they be offer and I will as far as I can avoid be  tedious or use unnecessary repetition of what have be already say first it  have be offer that this deed be obtain by fraud and surprise case in chancery  second if it be original fair obtain yet it be undue secret and conceal from  the duke that he can not come to know the true content of his power or if it  be not conceal yet it be utter forget by the duke which be the reason and  occasion why sufficient care be not take to execute the power as it shall have  be next that though the power of revocation be not literal execute yet his  intention appear clear to dispose of the estate otherwise it ought to be  support in equity then that deed of be but ancillary that be the phrase to the  will of which be agree to be revoke by the will of the deed must fall with it  another thing be that what the duke have do amount to a revocation then that  there be a general trust and the duke remain owner of the estate and may  charge it as high as he please to the utmost value and so be absolute master  of the estate his subsequent disposition of it by his last will ought to be  make good in equity case in chancery er p there be many thing accumulate  together and so make the better show but it be best to consider they several  if we will know the true weight of they it be true it be charge in the bill  that this deed be obtain by fraud and surprise and that it be conceal from the  duke or forget by he and he have a intention to revoke and go as far as he can  so that they be sufficient that into this matter by what be charge in the bill  but whosoever read over the deposition will see that the end they aim at be to  attack the deed themselves as false deed and not true execute but that be try  at law and the will and deed verify by a verdict the counsel have attempt to  make use of the same evidence and read it all or at least the great part of it  as evidence of surprise and circumvention but I think that ought to be well  consider by the court for we eat not to find our judgement upon that evidence  which if it be to be regard at all do amount to no more than what be insist  upon and which be positive contradict by the verdict as to fraud and  circumvention it mustbe grant I that they be thing not to be presume it be all  deny in the answer and the proof must be very clear if it be to be regard by  the court now for this word surprise it be a word of a general signification  so general and so uncertain that it be impossible to fix it a man be surprise  in every rash and indiscreet action or whatsoever be not do with so much  judgement and consideration as it ought to be but I suppose the gentleman who  use that word in this case mean such surprise as be attend and accompany with  fraud and circumvention such a surprise indeed may be a good ground to set  case in chancery aside a deed so obtain in equity and have be so in all time  but any other surprise never be and I hope never will be because it will  introduce such a wile uncertainty in the decree and judgement of the court as  will be of great consequence than the relief in any case will answer for they  say this surprise be make out two way by matter that appear in the deed  themselves and by circumstance in proof that arise out of the deed as to the  matter that appear in the deed themselves they urge first that it be express  in the deed of release that it be make in corroboration of the will which be  insert throughout then that it be import to be for the confirmation of the  will when in effect it do full revoke it because there be no limitation in the  deed but such as vary from those in the will then that it be for secure the  legacy in the will and yet it self defeat the will that as to a great part of  the estate the deed limit it to my Lord of bath after failure of issue male  exclude the daughter whereas in the will that limitation be after failure of  issue general that the provision in the deed for the three son be ineffectual  because the duke have not power to settle it so that the power of revocation  be unreasonable fetter and the covenant whereby the duke who be then very  young be oblige not to revoke the will be a derogatory and illegal covenant  and the unskilful phrase and language of the whole conveyance must be a  demonstration that sir William Jones be not employ in it as be pretend these  be the objection to the deed it self now as to the Misrecitals as my Lord  chief justice have say they will have no influence upon the limitation because  the recital in a deed be not make the measure of the limitation in it beside  as I apprehend here be none of these Misrecitals which be of that nature as to  draw on the duke into a mistake in the favour of my Lord of bath for the  recital that the duchess have a much great estate by the will than she have  before as the limitation of Dalby and Broughton for life when it be but during  widowhood this may lead the duke indeed into mistake in favour of the duchess  as it do and may have induce great limitation of the same kind but never to  the advantage of my Lord of bath who be to come in remainder so that all the  inference that can be make from those Misrecitals be only that sir Thomas  stringer who it be apparent in proof draw the deed be a careless man then they  say the variation of the limitation from those in the will show that it be to  revoke the will and not to confirm it as to that case in chancery first such  variation be a proof that the duke between the time of the will and the time  of the deed have alter his mind as to those particular but to carry it further  I see no reason in the world case in chancery er p next it have be observe  that the word of the deed which purport the end of it to be for the confirm of  the will must plain in reason refer to the principal design of the settlement  which be to dispose of his estate to my Lord of bath and the near of his  relation and not to refer to any particular limitation in the will and that it  do so confirm the will as to the main principal limitation of the will be  plain and it do appear by the very phrase of the deed that beside the confirm  of the will he do main design the settle of his estate then let we consider  the difference in point of limitation between the deed and the will first they  say in the deed there be a estate limit to the duke for life which be not in  the will that be proper in a deed but will have be absurd in a will which be  not to take effect till after his death then for that variation in the  limitation to the duchess it be not material in point of value but for  duration to the earl and it be a reasonable thing so to make it for since he  do intend to charge his real estate with great legacy it have be impossible to  have sell any part of it that have be under a rentcharge of pound and  therefore it limit land of that value as for the limitation of nortondisney  which indeed be to the advantage of my Lord of bath and be the only variation  from the will which be so for with respect to the Essex and Northern estate my  Lord have but a remainder after failure of issue in general but in this it  after failure of issue male but then it be to be consider that the honour will  fail upon the duke be death without issue male and he do intend and desire  that the honour of duke of Albemarle shall come to my Lord of bath his father  have go so far in it as to procure a promise of it under the sign manual by  king Charles the second and at the same time he have a estate of pound a year  and then it become he well that such a part of the estate shall go with the  honour as to that objection that thereby there be no provision make for  daughter it be indeed a very great one if indeed there be no provision at all  for they but it mean no more than that if he leave no son there will be a  ample provision out of the rest of his estate for daughter and so in effect it  be upon the marriage settlement and the will of so that if it be a argument of  surprise as to the one it be the same as to the other then for that provision  that be make out of Rotherith and nortondisney for the three son it must be  admit that as to my Lord duke be mind in the matter it will be ineffectual but  there can be nothing infer from thence but that there be a great case in  chancery neglect of look into the settlement but that will be no ground in  equity to relieve against this deed for if it shall be so how many Settlements  must we set aside upon man settle that over which in part they have no power  of make such disposition because the person concern in draw the settlement do  not take sufficient care in every particular to pursue the power he have who  make the deed beside there be the same mistake in the will of in relation to  Potheridge where the barony for Mr monk be to be fix it be by a settlement in  king Charles the first be time so settle in tail that it can not or be not  legal to be dispose of by will indeed it be say that there be some article  make with pride about that matter to carry the estate accord as the duke shall  direct but those article can answer the objection for they be make three month  after the will and then they be make with a wrong person and so signify  nothing it have be object that this deed pretend to be for secure legacy in  the will of but defeat they that be a mistake in the objection for it confirm  the will certain as to the legacy and do createa trust for perform and pay  they indeed by a subsequent Act videlicet the will of there may be a  alteration make but that be no argument against this settlement it self there  be another objection make and that be that the power of revocation be  unreasonable especial back with such a unreasonable covenant not to revoke but  as to that it be to be consider what the design of this settlement be he have  make his will before but he think himself unsafe under that disposition he be  under apprehension of be apply unto and importune to dispose of his estate  otherwise than he have a mind it shall go therefore he intend t S settlement  as a Guard against any surprise of that kind and that be his intention if it  have be case in chancery er p only a general power of revocation it have be no  more than what any will or subsequent Act do by he will have effect but that  have not answer his meaning and so as to the last covenant in the deed which  they call the derogatory clause whereby the duke covenant not to revoke the  will otherwise than as aforesaid I take it that do import no more but that as  to the precede part of the deed he guard himself against surprise as to the  real estate so he do here as to the personal estate and though it prove  ineffectual at law that be not material as to the intention of the duke the  last objection upon the deed be the Penningit which be a objection that be to  go through the whole deed but this objection goesfurther than the point for  which it be allege for if it prove any thing it prove it to be a false deed  but for this I do not find it so much as suggest that this deed be case in  chancery draw by sir William Jones my Lord of bath indeed say that it be leave  to the care and conduct of sir William Jones but as to what appear he be only  concern in the proviso for it be very good reason to believe when he say I  approve of this proviso he do not refer his opinion to any other part of the  deed and indeed any one who know or remember he will think that he concern  himself with no other part but what he set his hand to the approbation of I  have take notice of those objection and argument urge by the counsel which  take altogether shall induce their ground of equity from a surprise in obtain  this deed but when they be several consider they seem not to be of such weight  as be contend for but if the objection have be more in number or of great  consequence yet let the deed be never so ill draw and the mistake and  Misrecitals never so many and the difference of limitation in the deed from  those in the will never so many too yet if this deed be real execute by the  party all this will not be a sufficient ground in equity to set aside this  deed and the counsel for the plaintiff be very well aware of this and  therefore they go to other circumstance out of the deed to show this surprise  and as far as I can observe the objection upon this point be these that there  be no proof of any previous direction for draw of this deed there be no proof  of the draught or deed be read to the duke no counterpart be execute the  trustee be not acquaint with it there be a estate limit to sir Thomas Clarges  when there be great difference between the duke and he it be not subscribe by  the duke be counsel as all deed execute by he use to be that it be not ingross  accord to the draught and that in a very material place for if it have be  accord to the draught the duke have be master of the estate by a general trust  and if it be not peruse by sir William Jones or he be not a witness to it then  so far as sir William Jones be surprise in the matter the duke be so too now  as to the want of proof of any previous direction for this deed that be not  strange after such a length of time sir Thomas stringer who draw it be dead  four of the witness to the execution of it be dead too but the presumption be  very strong when the draught be of sir Thomas stringers son handwriting and  correct and interline by his own hand in several place that he have order and  direction from the duke to prepare such a deed the read or not read the deed  to the duke do not appear it may be read to he before and it be not necessary  it shall be read to he at the time of execute if it be then the will of lie  open to the same objection for that be not read to the duke when he seal it  case in chancery as to that objection that there be no counterpart nor the  trustee acquaint with it that can be nothing of a objection for the deed  remain in the duke be hand till a little time before his go to Jamaica as  appear by my Lord of bath answer which have not be falsify as I know of in any  point nor be there any occasion to give notice to the trustee because there be  no manner of estate or trust lodge in they but my Lord of bath be the only  person that have any trust in he by the deed therefore there be no reason that  it shall be know to any one but he and the nature of the thing and all the  proof show that it be intend to be conceal then as to the story of sir Thomas  Clarges and the difference between the duke and he there be no proof of it it  be at most but a hearsay testify by one witness that it be not subscribe by  the duke be counsel as all his deed usual be case in chancery er p it seem to  I to be of no very great weight when that draught appear under sir Thomas  stringers son hand interline and correct by himself and sir William Jones a  witness to the execution and present when it be complete sure that can never  signify any thing as to the other objection that be make that the deed be not  ingross accord to the draught and the variation be in so material a part as to  make the duke master or not master of the estate it shall be consider first  that upon view of the draught it be plain word have be cut off and there be a  positive witness who swear that he twice ingross the deed by the draught it  ispossible that a man may twice leave out the same word in engross a deed by a  draught but that he shall twice add the same word that be not in the draught  be very strange and not easy to be believe then say they this be not the  draught that be first peruse and approve of by sir William Jones that be  certain such a objection as never be make before and indeed it be likely there  never be occasion to make such a objection till the last hear for it may be it  be not cut till then but pray let it be consider for who interest it be to  have this draught cut or alter from the ingrossment it be impossible it shall  be cut off for the interest of my Lord of bath gy the objection that arise  from it for let any word in nature have be there they can not have be of such  disadvantage as they will have it to be however be the alteration of the  draught what it will if it be not do by the defendant nor be for their  interest to be do nor do before the execution of the deed it all signify  nothing but I think it be fit and proper here to say something to that notion  that where the counsel be surprise that be a surprise case in chancery upon  the client I take that to be a matter of very great consequence and I fear it  will shake most of the Settlements of estate in England and for that I will  mention the case of sir James Herbert and the late Lord of Pembroke there be a  bill bring in this court to set aside the will of the elder brother who be the  last earl of Pembroke but two sir James be heir at law and the other be but  halfbrother the earl have take a displeasure at his brother and send direction  to Mr Swanton to draw a will and settlement of his estate and among other  thing order to be sure that the brother shall have no power over the estate to  dispose of it and because that in his grandfather will there be such a  settlement as he like of he send he that Swanton make a will and limit a  estate to sir Philip Herbert the brother for life and the remainder to the  heir of his body this will be bring by the counsel to the earl and read and  execute and hold to be good yet this be a notorious surprise upon the counsel  for nothing be plain than that the counsel have make a mistake or know not the  law he do not at best consider that upon such a limitation the law vest the  whole estatetail in he and he may dispose of it it be plain he have not pursue  the will of the grandfather but yet when this Cause come to be hear before my  Lord north when the will appear to have be true execute the court declare it  be a misfortune that they do not go to a better counsel and it be send to law  to try whether it be the will of the earl of Pembroke or no and it be find to  be the earl will the bill be dismiss with cost thus I have take notice of what  have be offer to prove the surprise I will short mention on the other side  what have be insist upon to show that there be nothing like surprise but all  be do upon a very good ground and pursuant to a settle full purpose continue  for so long a tract of time to the duke be death first say they it do appear  there be a very near relation between in Lord duke and my Lord of bath and  that duke George own he owe his first set out in the world to the ancestor of  my Lord of bath it do plain appear there be a most particular friendship and  mutual confidence between they in matter of the high nature and chief concern  nay that this proceed so far on my Lord of bath side in duke George time that  he prevail with king Charles the second to promise under the sign manual and  recommend it to his successor to create my Lord of bath duke of Albemarle if  there be a failure of issue by the duke then that this friendship do continue  between duke Christopher and my Lord of bath be plain beyond all controversy  for it begin upon a very good foundation that be whereas the garter shall have  be give to the earl of bath he prevail to have it return case in chancery to  the young duke and it continue so much all along that case in chancery er p  there be nothing of moment relate to the duke be affair in which the earl be  not main concern and all this be prove by a series of letter continue down  from the death of duke Georqe to the death of duke Christopher in he send he  word he have pursue his advice and his advice shall always be very prevalent  with he in he tell he he expect to see he with great impatience because he be  not able to go on in the regulation of his family without his assistance and  advice that he have finish his will and will make all more perfect when he  come to he it shall seem his former will be trust in my lord hand and when  that be return or bring u p in a few day after this will of be make and by  that all the estate or the main of it be give to my Lord of bath and it be the  first will that he make I think after he come of age and have any power to  dispose of his estate in land and thereby as I say he devise the bulk of it to  my Lord of bath he always desire as the will declare that in case he have no  issue the earl may succeed he in his honour and estate as well out of true  affection to he as his near kinsman on his father be side as out of due  gratitude for the many act of kindness and service do by the earl beyond all  the rest of his kindred and friend upon which he humble desire his majesty to  confer the dukedom upon he and that the old son of the earl and so successive  the old son of the family shall be call Lord monk to preserve his name and  honour in memory of his father and of himself there can be word that express  more kindness and respect and intention of advantage then be here use there be  a attempt by proof in this Cause to shake the credit even of this very will  but when the counsel on that side come to speak to it they can produce no  proof that will at all come near it it be plain then that at this time no man  can have more kindness for another than the duke have for the earl in the year  there appear the same sense in the duke of the earl friendship by his letter  and the obligation of gratitude he have to he that he have no friend in who he  can confide but himself and desire he to come to assist he in the management  of his affair that his kindness and friendship be never to be forget without  the high ingratitude all this be a sort of evidence against which there be no  opposition to be make so it be also continue to the year when he send he word  of a servant death and desire he to secure his paper and account case in  chancery thus it stand to the time of make that settlement and while the duke  and he be upon such term with one another it be no strange thing that he shall  make such a deed as this and the manner both of prepare and execute it seem  far from have any thing of surprise in it then the next thing that have be  urge be that this be a settlement under a power of revocation which he intend  to make use of it be secret and conceal from he so that he can not know what  his power be and several case be put where a man in such circumstance know  suffer a purchaser to go on with his bargain he shall not have any advantage  by such a conceal settlement those case be all admit to be good and particular  that mention by Mr baron Powel and my Lord chief justice Treby the case of Mr  Clare and I think true I need go no further than to say that there be no  resemblance between that case a this that be whore a purchaser be concern and  the person that conceal the deed suffer the purchaser to proceed without give  he any notice if indeed there have be a full and clear proof that the duke  have a real intention to revoke this deed if he can have know what he be to do  in order to it and have be hinder by the fraud and contrivance of any person  concern in it in point of advantage and if by such concealment it be  impossible for he to know the true circumstance of his power that will have  make a different consideration in a court of equity but there be no proof that  these deed be ever in the hand of my Lord of bath till some little time before  the duke go beyond sea when the duke deliver they to he for as to Alemans  deposition that be but a delivery upon execution and not a delivery for  custody and my Lord of bath in his answer say he have not they till then  express so that as far as that go it be all the evidence you have where the  deed lie all the while and his answer be fortify in this by what Mr Courtney  say that my Lord case in chancery er p tell he when he come to he that the  deed itself be in the hand of the duke and he have receive the draught from  the duke to advice upon and it be further verify by two materialFacts by the  abstract that be take about some two year before by sir Thomas stringer and by  what be admit on all hand be by my Lord of bath deliver up when the will of be  prepare and that the will of and deed be produce together under the duke be  seal after his death it be to be take that both together be put under the  cover and seal up by the duke and deliver to my Lord of bath as he himself say  in his answer there be then so much ground to believe that the deed be in the  duke be own hand what obligation shall there be suppose to lie upon my Lord of  bath to make any mention of it to case in chancery he it be always intend to  be a private thing that be plain there be no proof what the purpose of the  duke be in make the will the purport and effect of the thing speak itself but  my Lord of bath say that upon the sell of Dalby and Broughton to my Lord  jefferies he do give the duchess a caution not to be so earnest for finish the  bargain for she may be a loser by it which can mean nothing but that she have  a interest in it by this deed as to the objection that my Lord of bath stand  by and see that purchase make and give no notice of this deed to the purchaser  I confess have my Lord of bath set up this deed against and to overthrow that  purchase that will have bring it up to the case of Wraw and ford but every  body know that a bare voluntary settlement be of no force against a purchaser  without notice and as to the lease and grant of annuity there be no proof that  ever my Lord of bath know of they then it be object that though it go not so  far as a purpose concealment yet the thing be out of mind and the duke  continue owner of the estate and act as owner though not with all the  circumstance require those act do by he as owner be to be support in a court  of equity this seem a hard demand for a voluntary devisee to crave relief  against a prior settlement with a power of revocation because he that make  that settlement have forget it there be no precedent to warrant a decree of  that nature nor be there any pretence of reason for it for betwixt two person  each of which claim by a voluntary settlement the matter stand upon a equal  foot and there be no possibility of a equitable consideration to assist the  one against the other and if there be any ground for it as a notion there be  no room for any such notion as to the proof in this case for it be find upon a  supposition that the duke of Albemarle have forget the settlement of which  there be no proof but only a argumentative one draw from his dispose of his  estate another way and manner but that he have not forget it beside the answer  of Mr greenvill and sir Walter Clarges there be other thing to be say and as  to their answer I take it no decree can be make against a man answer upon the  proof of one witness why then shall a decree be expect against a man answer  where there be no proof to the contrary at all sir Walter Clarges upon  somewhat that have be tell he of the duke be intention towards he by his last  will as shall seem take the liberty to complain to the duke and seem much  discompose but the duke bid he not be concern at what stringer say for he have  otherwise better provide for he now there be no other provision but what be by  this deed case in chancery Mr greenvill address himself to the duke to thank  he for what kindness sir Thomas stringer acquaint he he have show he in his  will but the duke reply with some reflection upon sir Thomas stringer who  pretend to have be very instrumental in it that he have never move he in it  but that he have take care of he and his brother will tell he wherein and if  he will he may tell his brother he say so and he swear he do go to his brother  my Lord of bath who tell he the duke have indeed provide for he and settle a  part of his estate upon he but that if the duke have not allow he so to do by  send he to he he will not have tell he of it all this be a full proof that the  duke have not forget this deed at that time but it can be believe that the  duke have ever forget this deed without disbelieve several act that have be  substantial prove to be do by he as when upon my Lord lansdown marriage his  letter do particular take notice of a general interest he have in he and seem  express to refer to this very deed case in chancery er p as be so much concern  in his good or ill fortune as my Lord of bath himself very well know and  congratulate the match with my Lord treasurer daughter he go on to desire that  as he have take care to marry he well so he will have great regard to his  education which he do mind he of remember still that he be most concern in he  of any one except himself as he very well know this can refer to nothing but  some settlement of his estate and none appear but this there seem to have be  some attempt to interrupt this friendship and amicable correspondence between  the duke and the earl for by a letter date as I take it Jan the duke say his  kindness and friendship shall always be the same and all the malicious  endeavour of ill people shall not be ale to break the link between they so  that it shall seem there be malicious endeavour use to sow difference between  those noble person but by who be not apparent in the proof but still there be  a continue series of kind letter between they which go on even to the time of  make the last will in as full of gratitude all the duke be letter great number  of which be produce as can be for his continue service and kindness nay down  to the time of his go to Jamaica and while he be there now it look to I very  strange that the duke shall all this while be receive obligation and own they  from my Lord of bath and yet must be suppose to have forget what he have do in  acknowledgement and recompense of those service then there be beside all this  the positive testimony of Mr Crofts and his wife both swear particular  declaration from the duke be own mouth which can have relation to nothing but  this deed there be indeed one thing that be urge as a strong argument the duke  intend to alter this settlement that be his take case in chancery such formal  step in prepare and draw this last will his advice with my Lord chief justice  pollexfen and so much solemnity be use in have the part of it ingross and  deliver with such ceremony to three several hand it be they say hard to  imagine he will do all this with a deliberate intent that it shall all signify  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 own that it do seem a  strange part in the duke and the world must be surprise at it for it be  impossible to make the duke be act of apiece and reconcile such contradiction  he can indeed be clear from prevarication be do certain intend to deceive the  duchess or my Lord of bath it be most evident he do keep my Lord of bath in  hand that he shall have his estate for the testimony of Mr Prideaux and other  witness concern the duke be declaration of his intend to settle and have  settle his estate upon he we find by this deed his estate be so actual settle  and that mind continue till and it appear by letter as well before S since  that duke Christopher entrust he in all his affair of consequence act not in  any thing but with his assistance continual make use of his friendship at  court to the time of his death when be be dissatisfy with any of his servant  my Lord of bath be the man that must settle the matter when he be to purchase  my Lord of bath must buy for he when he be to sell my Lord of bath be to  transact the matter when p want money my Lord be to procure it for he when he  be in danger of lose money my Lord be apply onto to prevent it all this appear  by the several letter that have be read and produce when he be go to Jamaica  and any request at court my lord interest be that which he rely upon my Lordof  bath be the single trustee to be apply to chief in what concern the estate the  key of the evidenceroom be to be deposit with he as be principal concern if he  shall miscarry now it must be confess a man may do as much as all this come to  and make use of another man friendship and not design to give he his estate  when he have once firm settle it so and repeat his assurance of kindness and  continue to make profession of kindness all along to the time of his death and  go on to make use of his service because he think he may free command the  service of one who expect to have such advantage from he yet then I do not see  but that it must be admit that he do deliberate design to impose upon my Lord  of bath or if he do not be do intend to impose upon my lady duchess now be it  which it will I do think he be not to be excuse in reference to the point of  honour as to the request make to the king for the earl of bath and in  pursuance of duke George his desire who engage the late king to promise under  his sign manual and he bath make the same kind of request for Mr monk case in  chancery er p case in chancery now upon the whole matter whether this will of  be make to free Mm from some importunity in his family be a great question  there be some proof in the case that great look that way it be plain he do not  execute it for several month after it be prepare and draw and when it be  publish it be obtain with great importunity against mrs inclination at that  time and there do not appear any intention that it shall revoke this  settlement but on the contrary it shall seem he do not intend so for there be  no witness call to the will but the same that come with stringer from  Newcastlehouse to that purpose but whether he do intend it shall take effect  as to the personal estate only or to delude my Lord of bath which way his  honour be best save be not at all to our purpose to consider upon the case  before we in judgement though I must say take it one way or the other he seem  to blame and to have deal in some sort double the next thing insist upon be  that this deed be revoke in equity by this will and though the power be not  pursue in all the circumstance yet his intention appear to make this different  disposition of his estate a court of equity shall supply that defect now I  take it for grant that a power of revocation shall not be carry further in a  court of equity than the law will carry it the law have be liberal in expound  power of revocation favourable and where the law expound a thing accord to a  equitable constitution there be no reason for equity to extend it further  where there appear to be other equitable consideration it may have another  judgement but if it stand without any mixture of other consideration I think  it will be very hard to break through a settlement especial so solemnly make  that he think fit to restrain himself from alter it without the assistance of  so many noble person whenever he will make use of the power thereby reserve to  he I say it will be a very strange thing for a court of equity without the  mixture of any other consideration to assist another voluntary conveyance  against this the case of Arundel and Philpot be a full authority in this case  and it have be so often repeat that I need not mention it any further as to  what be insist upon by some about the revocation be complete as to the number  of witness by the publication in Jamaica and the impossibility of have any  peer there I must confess have the duke in Jamaica have a express deliberate  intention and purpose to revoke any act to testify it and go as far in  pursuance of the circumstance as his condition in those part will admit that  may have come in within that foundation of equity to wit accident case in  chancery but I think there be no ground of proof of any such intention or  action for the proof amount to no more than this the duke to prevent any  trouble some application to he shut up himself in his room and those that come  to he be to come in at the window and a strong box in which his paper be stand  under the window by frequent tread upon it he have a suspicion that there have  be some attempt to force and open it whereupon he call for the box to open it  and out of it take several paper which he read or give to dr Sloan to read  several letter as I remember and afterward he take up a seal packet and say to  the doctor this be my will and put it down again be this any manner of proof  in the world that this Act be do mind to cause to testify much less be it any  proof that there be any notice take at this time of this settlement or that he  will avoid it I will say something to that other point that this be a deed  make to confirm and corroborate the will of be but ancillary to the will and  depend upon it and be to stand or fall with it and upon the revocation of that  will do fall with it this be a objection whole inconsistent with the other  argument that be use against this deed that it be by surprise for by those  argument they will destroy the deed as inconsistent with the will but now the  argument be turn the other way but my Lord chief justice holt have so full and  clear answer that matter that I shall not need to trouble you with say any  more in it the case cite about it be in no sort applicable to this case the  last thing insist upon be suppose the deed to stand good yet there be a  general trust raise in it to pay the legacy in the will my Lord of bath be no  more than a trustee and the duke continue master of the estate and he who have  such a general power to charge the land may do it to the full value and then  consequent may dispose of the land too now this point of trust be the proper  subject of a court of equity but to expound case in chancery er p a deed which  be make on purpose to prevent a descent upon the heir and then to make a  general result trust to let the heir in be such a construction as will  apparent contradict it self and the deed but that will fall out to be a point  that come to be consider hereafter how far this may be a trust in my Lord of  bath to answer legacy or debt in case the personal estate shall fall short it  be not proper considerable now the only point that be speak to by the counsel  and leave for the judgement of the court be this whether in this case here be  sufficient matter for a court of equity to interpose so far as to set aside or  impeach this deed of now as to that matter I think I have the concurrence of  my lord the judge in it and I be of opinion that there do not appear  sufficient ground upon this case for a court of equity to do any such thing  therefore I declare my judgement case in chancery that as far as my Lord  Montague and my lady duchess and Mr monk their bill pray that the court will  interpose to set aside this deed so far their bill ought to be dismiss as to  any other matter that arise in the case I suppose there will be time take to  speak to they but this be the only matter in judgement before we at present  case in chancery in cur cancel lord chancellor some lord chief justice holt  and lord chief justice Treby