brown duchess dowager OF newcastle appellant lord pelham and other respondent  that may Mews dig v person claim land by a will or other voluntary disposition  and have the law on their side be entitle as against a heir at law to the  assistance of a court of equity for a discovery of the deed and write relate  to the devise estate and to have they deliver up as follow the land viner vol  p can Eq can ab p can John duke of Newcastle be seize of several honour castle  land tenement and hereditament freehold copyhold and leasehold in eighteen  different county of about pound per and some part of which be his paternal  estate as come from the holles family other part be of his own purchase and  the residue be for distinction sake call the Cavendish estate as former belong  to Henry duke of Newcastle the appellant father this latter estate come to the  appellant under the settlement and will of her say father but it be encumber  to the amount of pound and upward and therefore after her marriage with duke  John they come to a agreement for his discharge these encumbrance and accord  by fine and recovery and a deed lead the use thereof date the that of January  the Cavendish estate be limit subject to the appellant estate for life in  great part thereof and after other limitation to duke John and his heir brown  er p hold copyhold and leasehold he devise the same to the respondent Thomas  Lord Pelham who be his sister son for his life remainder brown to his first  and other son in tail male successive remainder to the respondent Henry Pelham  another of his sister son for his life and then to his first and other son in  tail male successive with other remainder over provide that whoever shall  enjoy his estate by virtue of his say will shall take upon he the name of  Holles and in case the testator personal estate shall not prove sufficient to  pay his debt legacy and funeral charge he subject his real estate to make good  the same the testator then give to his wife all her own and his jewel absolute  and the use of his gold and silver plate for her life and after her death he  direct this plate to go with his real estate to the respondent Thomas Lord  Pelham and the several other person in remainder as a heirloom and as to the  surplus of his personal estate if any he give the same to his say wife and  appoint her and Thomas Lord Pelham the respondent father and Henry Lord paget  executor on the that of July duke John die but have after the make of his will  and before his death lie out about pound in the purchase of land such new  purchase land descend to the lady Henrietta as his only child and heir at law  after the duke be death the appellant think proper to conceal his will possess  herself of all his deed and write and particular the settlement of January and  to enter upon and possess all his real and personal estate whereupon she be  cite into the prerogative court of Canterbury to bring in the will of duke  John to be there prove and after great delay and litigation she at length  produce it and several witness be there examine to the due execution thereof  in Michaelmas term the respondent Lord Pelham and his brother exhibit their  bill in chancery against the appellant and the other executor and also against  the lady Henrietta as the testator heir at law to discover the say will and  the settlement of the Cavendish estate to perpetuate the testimony of the  witness to both of they to remove all impediment which may prevent the try the  validity of the will at law for a account of the testator personal estate and  that it may be apply in satisfaction of his debt legacy and funeral charge in  exoneration of his real estate and to have the plate secure so as to go along  with the real estate accord to the will to this bill the defendant the duchess  put in a plea answer and demurrer and as to such part of the bill as seek a  discovery of any deed relate to the Cavendish estate and particular the  conveyance lead the use of the fine and recovery thereof after her marriage  with duke John she plead that duke Henry her father by his will date the that  of may devise that estate to his wife for life and then to the defendant and  the heir of her body and brown strict charge that such of her issue on who she  shall settle the same which he will shall be only one that his estate may  remain entire shall take the surname of Cavendish with other remainder over  and that duke Henry afterward by lease and release date the that and saint of  June in consideration of natural love and affection settle all the say  Cavendish estate to the use of himself for life and then to the use of the  defendant in fee he or she upon who the inheritance of the premise shall  descend or come under the defendant take the surname of Cavendish and that  after duke Henry death a bill be in Hilary term bring by the earl of thanet  and the lady Catherine his wife who be one of the four daughter and coheir of  duke Henry against duke John and the defendant his then wife to impeach the  will and settlement of duke Henry but that such bill be dismiss on the that of  march this plea be argue before the Lord keeper Harcourt assist by the Lord  chief justice of the common plea and Mr justice Tracy and be overrule in  consequence whereof the duchess put in a further answer and after insist upon  the several matter which she have plead relative to the Cavendish estate she  set forth that by indenture date the that of January execute by duke John and  herself before they have any issue between they therein recite several  mortgage and encumbrance affect the say Cavendish estate which have be  purchase and take in by duke John and be keep on foot in trust for he it be  agree that a fine shall be levy by duke John and the defendant of such part  brown er p of the Cavendish estate as lie in the county of Northumberland be  pound per and to the use of duke John for life remainder to the defendant for  life remainder to their first and other son in tail male successive with other  remainder over provide that the several mortgage and other encumbrance on the  premise shall be assign over in trust to attend the inheritance thereof and be  subservient to the use thereby limit and declare concern the same and it be  also agree that recovery shall be suffer by duke John and the defendant of the  rest of the Cavendish estate which be declare to be to such use as be therein  limit touch the same and after take notice of duke Henry last will and  settlement it be by the same indenture declare that he and she to who the  inheritance of the premise shall by virtue of the use therein contain belong  shall take upon he and her the surname of Cavendish that the defendant join  with duke John in such fine and recovery in confidence that she shall have the  benefit of the several mortgage and encumbrance take in by he which affect the  Cavendish estate in the county of Northumberland for protect her life estate  therein but brown as these mortgage and encumbrance have not be assign  pursuant to the say agreement the defendant insist that she ought not to be  compel to make any discovery of such encumbrance or of any other use in the  deed of January this second answer be report insufficient the duchess take  exception to the report which be overrule she put in a three answer which be  likewise report insufficient exception be take to this report and upon argue  these exception before the Lord keeper on the that of December his lordship be  please to order that as to the conveyance of the Cavendish estate the duchess  shall answer whether there be two part of the conveyance and who have they and  that she shall set forth the same verbatim or give a attest copy thereof sign  by her and refer to it but that the plaintiff shall not make any use of such  copy at any trial at law before the hear of the cause soon after make this  order the duchess put in a four answer and thereby admit there be two part of  the conveyance of the Cavendish estate but still insist she be not bind to  discover that conveyance and she also allege that she be prevail on to execute  it by fraud and surprise or unwary though she have suggest nothing of this  kind by any of her former answer after put in this four answer the duchess  apply by petition to have the exception which have be overrule by the order of  the that of December reargued but upon hear counsel on this petition it be  dismiss and this answer be also report insufficient and not agreeable to that  order the court upon motion and after hear counsel on both side grant a  sequestration against the duchess but to avoid the erect of this process the  duchess appeal from the order of the that of December and all the subsequent  proceed and on her behalf it be insist I Pratt S Dodd that no reason can be  assign for produce the deed and write relate to so great a estate before the  write which both upon oath and honour be deny to be the will of duke John be  prove in any court whatsoever to be his will and if bare suggestion in bill  shall prevail against positive denial by answer many vexatious suit may be  bring and many title expose to great danger and hazard but why particular be  the deed of the Cavendish estate require to be set forth verbatim or a copy of  it to be deliver when no deed concern duke John estate be order to be set  forth or a copy deliver and if the pretend write shall not prove to be his  will the respondent Lord Pelham have no manner of right to duke John estate or  to any of the deed or write relate thereto and yet by set forth the same or  give copy thereof both the appellant and the respondent lady Henrietta  Cavendish his only daughter and heir may be material brown prejudice and  therefore it be hope that so much of the order of the that of December as  require the appellant to set forth the deed relate to the Cavendish estate  verbatim and to give a copy thereof will be reverse and that the subsequent  order and the commission of sequestration issue thereon will be discharge on  the part of the respondent lady Henrietta who be in the same interest with the  appellant it be argue I Montague p king that the other respondent under  pretence of a write which be in no court prove to be a will ought not to have  brown er p the assistance of any court to set aside the will and settlement of  duke Henry which have be full prove and judicial establish by a decree of the  court of chancery so long ago as February that pretend devisees be not entitle  to a discovery of any deed or write before they have establish their title and  even if such title be establish they ought not to have the aid of a court of  equity to impeach or destroy the say will and settlement of duke Henry and the  great trust and confidence thereby repose in his daughter the appellant it be  the proper business of a court of equity to compel a due execution of trust  and not in any manner to assist in the breach of they but on behalf of the  other respondent Lord Pelham and his brother it be say I Jekyll e Northey to  be a establish rule of justice in court of equity that person who claim land  by a will or other voluntary disposition have the law on their side be entitle  as against a heir at law to the assistance of a court of equity for a  discovery of the deed and write relate to the devise estate and to have they  deliver up as follow the land and that this course of proceed be find on the  high reason for otherwise all will of land may be disappoint and the heir at  law by gain possession and get the deed into his custody unless compellable to  discover and produce they in order to make out the title of the devisee may  defend himself at law by set up prior encumbrance and by that mean prevent a  legal trial of the validity of the will and total frustrate the intention of  the testator as to the objection that the respondent have not establish the  will or verify their title at law and that therefore a court of equity ought  not to afford they any assistance either against the appellant or the heir at  law it be answer that the will have be exhibit in the prerogative court in  order to be prove there and that the subscribe witness have be examine and  their deposition publish but that the sentence for a probate be delay by the  appellant and as against the lady Henrietta the witness to the will have also  be examine in the court of chancery but that those deposition can not be  publish until the appellant think fit to put in a full and perfect answer that  her grace have get into her custody all the deed and write relate to the whole  estate in dispute which be cover with lease and prior encumbrance the  respondent have they proceed at law will have brown be liable to be nonsuit by  the set up of such prior encumbrance and so may have be put to great expense  and have their title disparage without have the merit of the will which be  their title fair try that until the deed of January be produce and prove the  respondent can not proceed to hear their cause in the court of chancery nor  can that court give they any previous assistance to try their right to the  Cavendish estate under the will of duke John because his dispose power over  that estate arise from and depend upon that conveyance and therefore it be  conceive that the order of the that of December be just and consonant to the  rule of equity in the like case and that the subsequent proceed be regular in  the ordinary fount of justice and without any precedent to the contrary accord  after hear counsel on this appeal it be order and adjudge that the same shall  be dismiss and the several order and proceed therein complain of affirm jour  vol p brown er p dissenter