chancery report the case of the duke OF Albemarle with the argument thereon  come Montague all contra come bath all W m f RevocationWill the plaintiff  after a trial at law direct out of this court wherein the point in issue be  whether a settlement be well make and execute and a verdict for the defendant  that it be good and valid in law come into this court to seek relief upon the  equity reserve against the say voluntary settlement wherein be a power of  revocation by virtue of a will afterward make the question be whether in  equity the say will be a revocation of the deed though not strict pursue  chancery report the bill be that Christopher late duke of Albemarle be seize  of several manor land and tenement in several county have marry the duke of  newcastle daughter and be possess of a considerable personal estate frequent  declare that he will make ample provision for the duchess who then have but  pound per annum annuity settle on her for a jointure by George duke of  Albemarle upon her marriage with duke Christopher for the support of her  dignity in case she survive he and that if he shall have no issue male he will  leave to her for her life at least pound per annum out of his real estate and  in pursuance of such his resolution and likewise for the settle of the  remainder of his land upon his die without issue on colonel monk and other  make and publish his last will in write date July whereby he give to his wife  coach jewel plate c and for advance her live and support if he have no issue  male and in full of her pound per annum rentcharge and dower he give her his  land in Essex Stafford Lancaster York Lincoln Surrey Devon Hertford Middlesex  Berks and Southampton for her life and if she accept the same that she shall  release the chancery report pound per annum within three year after his death  or else that devise to be void the remainder of his land in Berks to sir  Walter Clarges pour vie and after in tail male remainder to his cousin Henry  monk in tail male remainder to his own right heir to bevile greenville son to  the earl of bath his freehold land in Surrey and Southampton for life and then  in tail male remainder to his cousin Thomas monk pour vie and then in tail  male remainder to his cousin Henry monk in tail male remainder to his own  right heir his land in Devon to colonel Thomas monk for life and then in tail  male remainder to his cousin Henry monk in tail male remainder to his own  right heir all his land in Ireland to his cousin Henry monk in tail male with  remainder to his own right heir provide that if he have any issue all devise  of any sum of money except for his funeral his father be monument almshouse  and legacy to his executor shall be void and if he leave any issue the premise  devise to sir Walter Clarges Mr greenville Thomas and Henry monk and their  issue shall go to his issue videlicet to his son successive in tail male if  daughter in tail with remainder to the say person as before chancery report  provide if he leave issue male he devise to his wife as a additional jointure  to her rentcharge land in Devon and Essex for her life and make the chancery  report er p duchess during her life and in case of her death the duchess of  Newcastle guardian of the child he shall have and in case it happen that  colonel Thomas monk or any heir male of his body shall live to come and be in  possession of the premise devise to he he desire they will live at Potheridge  the ancient seat of the family and desire his majesty to grant they the Title  of baron monk of Potheridge that it may remain in the family in memory of his  father and himself and his service his father have the honour to do the crown  in the restoration and make the duke of Newcastle Lord Cheney Jarvis pierpoint  sir Walter Clarges sir Thomas stringer Henry pollexfen Esq and other executor  that the duke give direction to Henry pollexfen Esq to make his will and when  draw be full approve of by the duke upon mature deliberation which will be in  three part he careful lock up and after leave two part of his will to two  person and keep the three he go to Jamaica chancery report that the duke when  in Jamaica hear colonel Thomas monk be dead in holland send to the earl of  bath sir Thomas stringer and other to send over for Christopher monk the  colonel old son to educate he so as to fit he to bear the character of one who  he intend the great part of his estate if he die without issue in September  the duke sicken in Jamaica and there again publish his say will and declare  that if he die the box and will shall be deliver to the duchess and die in  October follow that the duchess at her return from Jamaica find that the earl  of bath set up another will date August whereby the remainder of the great  part of the estate be give to the earl of bath and his heir and likewise a  settlement by way of lease and release in Corroberation of that will by which  he seek to avoid and frustrate the will of that the duke send to the earl of  bath for the will of if any such to have it deliver to he that he may make  another will that the will of be seal at sir Robert clayton the same day after  other write have be by he seal to the chancellor jefferies of some land sell  to he and that the duchess nor any of her chancery report relation ever know  or hear of the say deed till after the duke be death nor know to sir Thomas  stringer who be the duke be stand counsel and the plaintiff far insist if  therewere such deed yet it ought not to avoid or impeach the say last will  though the power of revoke the same be not literal pursue yet the same in  equity ought to be take as a revocation and the rather for that at the make of  the will the duke remain owner of the estate and he look upon himself so to be  for that he have since the say pretend deed sell some part of the estate to  chancellor jefferies without any revocation and the earl of bath pay no  valuable consideration and that she ought to be protect in the enjoyment of  the personal estate and the specific legacy devise to her in the will of  though the will of if any such be be intend by the duke principal to hinder  the descent to his next heir and the deed if such there be be for the same  purpose and that though the deed recite to confirm the last will of yet do in  several place control it and alter it whereby and by the extraordinary strange  and unprecedented declaration proviso and covenant therein the plaintiff  believe the deed be never execute by the duke or if so that chancery report he  be surprise therein and pray relief in the premise to this the defendant make  answer and set forth the will of whereby the great part of the whole estate be  give to the earl and his heir and set forth the consideration of his so do as  ancient kindred and esteem between duke George and the earl of bath and  several service and good office that he have do the family and likewise set  forth that be well satisfy with such his disposition of his estate and find  that he have be often importune to alter the same and fear lest the repeat  practice and Art attempt against such his disposition may some time or other  surprise he into a compliance consult with sir William Jones and other his  counsel how to obviate such practice and to settle his estate in such manner  as that it may not be avoid although for his ease he shall at any time seem to  yield to the solicitation of his near relation whereupon in year the duke make  a settlement wherein he begin that for assure of the honour manor c upon a  person of honour c and for the Corroberating and confirm the say will of and  to the end that no pretend last will shall be set up by any chancery report er  p person whatsoever and for the natural affection chancery report that he bear  to the earl of bath c grant by lease and release several manor land and  tenement c some in possession and some in remainder upon the earl of bath in  fee and so to Walter Clarges c in which deed there be this proviso that if the  duke shall at any time during his life be mind to make void the say indenture  or any estate therein contain or to dispose of the say honour manor and land  in any other sort or to any other person or person and his or their heir or  for any other purpose and the same his mind intent and purpose shall signify  and declare in write under his hand and seal in the presence of six credible  witness three whereof to be peer of this realm and shall pay to his trustee or  any of they the sum of six penny with intent or purpose to frustrate or make  void the say indenture that then and not otherwise and immediate after such  signification declaration and payment or tender of payment of six penny as  aforesaid the say use and use estate and estate trust confidence intent and  purpose and all and so much of the premise whereof the duke shall make such  signification or determination shall cease determine and be utter void to all  intent construction and purpose chancery report whatsoever and that then and  from thenceforth it shall and may be lawful for the duke by such write or any  other deed or write subscribe seal and testify as aforesaid to declare new or  other use or use trust or trust of all or so much of the premise whereof the  duke shall make any such signification or declaration or otherwise to dispose  of the premise or any part thereof at his free will and pleasure any thing in  the deed to the contrary notwithstanding and for the further prevention of the  mischief and inconvenience that may attend any future or sudden surreptitious  will which may at any time defeat his recite will which he declare to have  make upon mature deliberation covenant for himself his heir executor and  administrator with the duke of Newcastle and his trustee that he will not  revoke or annul or discharge the say will or any the legacy thereby devise  unless by some instrument seal and execute in the presence of many and such  witness as be in the say proviso specify declare and describe for credible  witness within the say proviso accord to the intention literal sense and true  meaning of the duke express in the say proviso he deny the say deed be obtain  chancery report by surprise but that the duke execute the same in the presence  of many credible witness and that the duke leave the deed and will in his keep  and as to so much of the bill as require the defendant to give a account of  what part of the say duke be personal estate come to the defendant hand he be  advice by the rule of this honourable court that he be not compellable to  answer thereunto for that it appear by the plaintiff bill that at the time of  the exhibit thereof the plaintiff be not entitle to make such demand or to  have such account it thereby appear of their own show that they have not prove  the say will of but that the same be and still be under controversy  undetermined in the prerogative court whereof or as to that part of the bill  he demurrer as to the objection that it be a conceal will and deed the  defendant insist that it be do silent but the duke will have it keep secret  that he may be free from trouble and importunity and they insist that as to  the last will of that the duke advice with counsel to know whether a will make  after the settlement will avoid or impeach the settlement be answer that it  chancery report will not and that proviso must be strict pursue whereupon he  be well satisfy and that the say deed ought to be support and not set aside in  equity be make upon such meritorious consideration of blood merit c the  plaintiff insist that the say deed if any such be a voluntary settlement only  that the will of be a good revocation thereof in a court of equity so that the  great question be if the say deed it be find to be valid at a vial at law be  revoke by the say last will accord to equitable intention or construction this  Cause have be debate and argue several time by learned counsel and afterward  by three judge videlicet my Lord chief justice holt the Lord chief justice  Treby and Mr baron Powell it be agree by they that the deed be a good deed  well execute and not revoke by the will of the Lord chief justice Trebys  argument in short be thus in the duke make his will and declare in respect  that the earl of bath chancery report er p be his kinsman and have do many  kindness to he and his family the earl shall have the great part of his estate  and give several legacy to one chancery report monk and then he make a deed of  settlement in though the limitation by the one and the other differ but it be  not make to revoke but to confirm the will both the will of and deed of do  agree in give the great part of the estate to the earl of bath but the proviso  in the deed make the dispute and then there be a will of wherein a large  estate be give to the duchess and colonel monk c and desire the honour of  Potheridge may be establish on the monk the plaintiff bill be to establish the  will of and set aside the deed of and will of and the deed on the hear of the  Cause be direct to be try and a verdict for the defendant and the plaintiff  have acquiesce under it and so this deed must be take as a good deed and  conveyance without any suspicion for the right be try and the whole content  try and if it be good at law whether there be Cause to set it aside in equity  be the question he be of opinion that the deed be a good deed and ought not to  be impeach in this court the plaintiff argument against the deed be surprise  concealment chancery report that the will of be a revocation in equity that  there be a trust as to the surprise he observe they do not make use of the  word fraud in gain the deed but that it be something put upon the duke for  want of deliberation he say he be not satisfy that there be any surprise upon  the duke for he be not languish at that time under any sickness but it be do  and execute in good company and after dinner with great consideration both  before and at that time they pretend a want of circumstance in the execution  whereas sir William Jones be advice with before the deed seal and present at  the time of the seal several other circumstance be insist on by the plaintiff  but none be sufficient to set aside the deed the deed of and the will of be  not inconsistent though they differ in the limitation of the estate but by  both the great part of the estate be give to the earl of bath though they can  not find instruction for draw the deed though the deed be not find to be read  though no counterpart be seal yet none of these by any of the precedent have  either be single or altogether allow as cause to set aside a deed in equity he  be of opinion that the deed do confirm the chancery report will of in the  settle and assure the estate part on the duchess and part on the earl and as  to particular limitation the duke may alter his mind from the will and do it  accord to the deed the three thing they insist on by way of surprise be that  it be do contrary to the duke be intention whereas the defendant have prove  that it be accord to his intention and the other side say not neither before  nor after the make of the deed for that there be several will make by duke  George and not a word of any limitation of any estate to the earl of bath  which be answer by the other side that the will be in few word and thereby all  give to duke Christopher and not any provision make for any young son or  daughter neither in these will nor in the will of be there any thing give to  the father of this monk another objection that the duke never intend any thing  to sir Walter Clarges for that he be fall into his displeasure and what be  give be a remote remainder but there be proof of continue kindness to the earl  of bath and the great proof that there be no surprise be the presence of sir  William Jones at the execution of the deed who chancery report be of great  ability and integrity and will not be guilty of a surprise and he be satisfy  that there be nothing but fair deal in the execution of the deed as to the  will of perhaps it may be intend not to give his estate to the earl and that  there be great advice take on that will but what be the meaning of the duke in  make the will of if it must signify nothing the true answer that have be give  be that he advice whether a will will revoke the deed and when he understand  that it will not but that he have put all out of his power except by a strict  revocation then he gratify the continue importunity of his near relation and  endeavour by that to render himself easy so chancery report er p he conceive  the deed well execute and be pursuant to the will of and can be set aside on  the point of surprise the next point insist on be concealment and they insist  on a clause in the earl answer where the duke send for the deed in order to  make a new settlement the will he may have revoke without the deed but as the  plaintiff say the not do of it be a concealment and the argument be good if  chancery report the fact be true but it be not so for it do not appear that he  ever intend to revoke the deed and both the will of and the deed of be deliver  into the earl hand just before the duke go abroad and the concealment be not  from the duke but the duchess and the precedent cite of Clare contra Com  Bedford and row contra pot come not up to this case the next point insist on  be revocation the will of say the plaintiff be a revocation in equity though  there be not the quality or number of witness describe and limit in the  proviso it be no revocation neither be it intend so the duke write a letter to  the earl that he have do he no wrong and he leave the key with he and employ  the earl in sell the cockpit and albemarlehouse and the duke continue in the  same mind to monk and sir Walter Clarges and there seem no reason why he shall  not be of the same mind as to the earl and there be a great provision make for  the duchess by the will and deed but not a word of Mr monk in either but only  in his last will where there be two voluntary conveyance he that have the  estate by law shall hold it where a party shall be relieve where there be a  defect they shall be relieve where there chancery report be a deceit or  falsity and the precedent be that they have be relieve in such case where it  be to pay debt or to provide for child several precedent have be cite as  prince and green Ferrer and tanner web and web tempt Elizabeth doctor Hamilton  contra Maxwellin Bowman and Yates Wallis contra crime and scot Thwayts contra  Deg arundel contra Phillpott as for the trust nothing be say by he of it for  it can be presume that there be any result trust for thatwas to undo what he  have do before the defendant be in possession by a verdict upon the deed and  there be no reason to disturb they Lord chief justice holt this case depend on  a will of and a deed of and a will of and the question be whether the will of  do revoke the deed of it be not pursuant to the power he be of the same  opinion with baron Powell and Lord chief justice Treby the deed be a good deed  and so all the evidence and circumstance relate to the deed ought to be take  to be true videlicet that sir William Jones be advice with in the draught and  be present as a witness and that the will of be a good will but not to be  chancery report relieve against the deed of which must be take to be a good  deed and he reduce what he have to say to four head of the frame and manner of  the deed whether on the evidence the deed be undue obtain of the circumstance  and condition of the person of the person of the duke himself and the  circumstance he be in when he make his will of for whether the plaintiff shall  be relieve against the deed be the question as to the first it be say the will  of and the deed make but one conveyance and that be fetch from law for at law  a fine and recovery and deed to lead the use be but one conveyance so as to  the first from the contradiction and Misrecitals in the deed which have be  insist on there be no Cause to relieve against the deed as to the second on  the manner of obtain the deed he say he can not find any undue obtain of the  deed but that sir William Jones hand be in the proviso of the say deed and  that the deed be not execute by a surprise for the duke be counsel be present  at the execution of the deed and here be no fraud chancery report to set it  aside as to the case of win and Bodvile which have be cite there be a great  fraud and practice but there be no fraud or circumvention here but the deed be  fair obtain and there be nothing but a presumptive evidence against it which  ought not in equity to be a evidence against the deed so as there appear no  evidence that the earl surprise the duke or that the duke be surprise as to  the three point touch the circumstance and condition of the person chancery  report er p the earl be a near relation and have do many kindness to the duke  and his family and be especial entrust by he and though the other person that  claim by the will of may be of relation to he yet he that have the be t S  Title have the right and so it be in the case of person where both claim under  two voluntary conveyance as to the four and last point touch the circumstance  the duke be in when the will be make the duke when he make the will be under a  restraint by the deed of for his power be execute and the duke have restrain  himself and the court of equity have no power to examine into the reason and  consideration for do it and there may chancery report be reason for a wise man  to re strain himself for he may not know what surprise may be put upon he and  as there may be reason for it so it shall be presume there be good reason  further there be no evidence of a intention in the duke to execute the power  for he have a opportunity to have do it and because a man may one way dispose  of his estate that therefore he may do it any way be strange and if that may  be do it will overthrow all the conveyance that be make they on the other side  pretend the duke have forget the deed it be make but in and well attest by  credible witness and if he have forget it his counsel have a abstract of the  deed and because a man have forget a deed that ought not to be a Cause in a  court of equity to set that deed aside for memory may fail but a deed be  permanent so there ought to be no relief against the earl and those that claim  by the deed of Lord keeper there be three suit in this court the duchess her  first bill be to set aside the deed of and the second bill by the monk much to  the same effect and on the same evidence and the three bill by the earl  complain of the will of on the hear of the cause the that day of July before  the then lord chancery report commissioner and on a trial direct touch the  validity of the say deed of there be a verdict for the deed and this verdict  have not be stir the Cause come now to be hear on the equity reserve on the  whole matter I declare the deed do stand unrevoked at law and the defendant  the earl of bath be well entitle under that deed for here be no creditor nor  purchaser or any child to be provide for and the benefit that come to the earl  be the Essex and the Northern estate the court do declare that there be not  any sufficient matter in equity appear to set aside the deed therefore dismiss  the bill of the earl of Montague and Christopher monk so far as they seek  relief to set aside the say deed of and as to the other matter equity to be  reserve chancery report er p chancery report volume report and case take and  adjudge in the court OF chancery in the reign of Charles two reign of king  Charles I James two William III and queen whether Vol III chancery report  Bretton contra Bretton car devise to young child how to be construe money be  bequeathe to young child where there be diverse daughter and one son who be  the heir at law and a fair inheritance and yet be by girth a young child it be  decree that he be not a young child within the devise and shall not take by it  he be heir at law Davis v Wakefield chancery report er report date chancery  report davis contra WAKEFIELD mich car Nov Mr of the roll a injunction into  the exchequer a bill be exhibit in chancery and a plea allow to it the  plaintiff decline that and bring a new bill in the exchequer for the same  matter order that the plaintiff elect in which court he will proceed if he  elect in the exchequer the bill in chancery be dismiss if in chancery a  injunction be award to stay his proceed in the exchequer nisi causan