case Bennett and his wife and spencer and his wife against vade and several  other a Reg lib a foe a in chancery Trinity term Geo in what case a court of  equity will set aside a conveyancer for fraud imposition and undue influence S  c atk the Lord chancellor after take three or four day to review the evidence  in this cause which have take four day in argument the estate be of the yearly  value of twentyfive hundred pound deliver his opinion in a very solemn manner  to this effect this cause be bring before the court upon two bill the original  one be bring by Mr Bennett and his wife and Mr Spencer and his wife as the two  wife be cousingerman and nextofkin and coheir at law of sir John leigh of  aldington in the county of Surrey and it be to set aside a will and a  settlement modern report obtain from he a little before his death by  imposition on his weakness modern report er p the crosscause be bring by vade  Mr Francis lee and other who be defendant in the original cause and claim  beneficial estate under the settlement which be pray to be relieve against and  it be in order to establish the settlement of and to have a execution of the  trust therein contain upon these two bill the cause come before the court and  the principal question arise upon the original bill which consist of two part  which must be mention in order to lie one part out of the case as far as the  original bill seek to set aside the whole devise in this court upon the head  of insanity by decree it be so far improper for if it have rest upon the will  as to the insanity of the devisor it be triable at law for ever since the case  of Bransby v Kerr in a Eq Abr bro p c a it must be take as a fix and establish  rule that no will of land or realty any more than of personal estate can be  set aside in this court for fraud or imposition b James v greaves Peer wms web  v Claverden atk Anonymous atk say vide well v Thornagh Prec in Ch Herbert v  lownds Chan Rep goss v Tracy Peer wms Farringdon v knightly Peer wms b for a  will stand upon a different foot to a deed for though a testator be compos  chin and a will be obtain from he by fraud or imposition that affect the will  at law and as a will of a personal estate may be set aside in the spiritual  court for fraud or imposition as in the case of powys v Andrews c Eq Abr  Annally bro p c see also archer v moss vern Thwaile v smith Peer wms plume v  beal Peer wms Tucker v Phipps atk Marriot v Marriot stram c so it may for the  same reason be set aside at law d goss v Tracy Peer wms web v Claverden atk d  whether the devise be of land or personalty and the reason the law go upon be  that fraud or imposition take away the animus to cause to testify and such a  will be not take to be the devisor will but the will of another and for that  reason the will shall not prevail at law therefore as far as that be seek by  the bill it be very improper but as the original bill do not only seek relief  in set the will aside but also by a amendment upon discovery of the settlement  pray relief against that the case be reduce to the question upon the  settlement and lucky for the plaintiff and the court the cause be deliver from  have any consideration upon the will because by the recovery in that will be  revoke e see Brudnel v Boughton atk hick v mors Ambl e the great caution of  the defendant have defeat themselves and it be providential when it so happen  now upon suffer the recovery the will be revoke and though the deed to make  tenant to the prcipe be not produce though there be no doubt but there be such  yet that will not alter the case for it do not appear but that sir John lee be  tenant in feesimple of his land and be come in as vouchee though there be no  modern report tenant to the prcipe yet he and his heir who claim under he be  bind by estoppel and so determine in the case of page v harward a salk a by  Lord chief justice holt and the reason why there be no want of a tenant to a  prcipe in a recovery suffer by tenant in fee be this that if such prcipe be  bring against a stranger who be not tenant and be vouch the tenant of the land  and be enter into warranty by that be admit the stranger to be tenant to the  land and so bind himself and his heir by estoppel but if he have be tenant in  tail this will not have estopped his issue because be claim by a superior gift  per form gift and not through or by his ancestor and the tenant in fee shall  have counterpleaded the vouchee by say he have nothing in the tenement and if  be do not plead non tenure in the voucher it be a admission that the tenant to  the prcipe be tenant to the land and therefore these recovery have revoke the  will and sir John leigh have by they regain a new estate b Tregonnel v  Strachan stram hill v Broughton brown c c roe v Baldwere term Rep b to the  purpose of revoke the will although it be the old one the ground upon which  the plaintiff pray to set aside the settlement in September be that it be  obtain from sir John leigh who be a weak person very modern report er p liable  to be impose upon that he be actual impose upon in the obtain of it by the  power and influence which vade have gain over he c see white v small Chan case  Clarkson v Hanway Peer wms James v greaves Peer wms Bridgman v green vezey  Evans v blood brown p c Filmer v get brown p c c and beside that power there  be circumstance of fraud and imposition appear upon the face of the settlement  itself against this relief one general objection have be make on the part of  the defendant that the plaintiff bill be frame to another purpose beside fraud  and imposition videlicet insanity and if it contain both it be inconsistent  with itself for a man of insane mind can be impose upon for imposition presume  that the party impose upon have a power of judge of thing unless he be deceive  but as to that I order the original and amend bill to be bring before I and I  have read they and the objection will not hold for by the amend bill the whole  matter be put in issue before the court with notice to the defendant to make  their defence the original bill indeed be first find upon sir John leighs be  insane and non compos chin but if that have be the case the remedy will have  be proper in this court not to set aside the will by decree for insanity for  that must have be do at law but to have have the consequential remedy  videlicet the delivery up of the deed which can only be do in this court but  as to fraud the plaintiff be proper to come into this court to have the deed  of settlement cancel for fraud and deliver up and reconveyance and therefore  in the amend bill the charge be not only of fraud and imposition but also of  extreme weakness modern report in sir John leigh and that Mr vade have make  use of his power over his weakness the amend bill conclude that either this  deed may be set aside for fraud and imposition and that the defendant may  reconvey to the plaintiff or if the court shall be of opinion that the remedy  be at law because of the insanity of sir John leigh that then the trial may be  direct and there be no inconsistency in this for a man may bring a bill depend  upon different equity or ground that may clash one with another in order that  if one fail the party may be relieve by the other and there be no  inconsistency here for the relief pray be in the disjunctive a see Stapleton v  Stapleton atk attorneygeneral v jeans atk cook v Martin atk Grimes v French  atk dorm v fortescue atk Weymouth v bowyer vezey jun a the first equity which  the plaintiff charge for their relief be that sir John leigh be a person of  great weakness of mind and of insufficient capacity to manage his affair as a  prudent man and that this make he liable to be impose upon by any person who  get the government over he the second equity be that the defendant wade from  the opportunity this weakness give he insinuate himself into sir John leighs  good opinion gain a power and influence over he and exercise it in many  instance as the command his person and affair and that by the same power he  obtain the present deed from he the three equity be that upon the very face of  the deed itself there appear to be fraud in the obtain of it as to the first  head of equity videlicet sir John leighs weakness and inability to manage his  own affair that be very plain to I notwithstanding all the evidence read on  the part of the defendant that sir John leigh be a very weak man but one  remove above idiocy or be a lunatic for that he be not either I shall take for  g anted and be justify by a jury of gentleman upon a inquisition issue out of  this court find he not to be so and this weakness be a evidence very strong  for the plaintiff it have be say on the part of the defendant that all the  evidence of the plaintiff in the original cause if it be so to be believe and  prove any weakness at all it prove it to a degree of insanity and indeed from  what several of the witness say it do amount to insanity but as all those  testimony be matter of opinion and as the boundary between a actual insanity  and great mental weakness be but very narrow it be no surprise thing that some  of the witness shall be mistake in judgement and take that for real insanity  which be no more than great natural weakness modern report er p it be  uncontradicted that from the time of sir John leighs marriage with sir Stephen  Leonard daughter he and his affair be under the entire governance of sir  Stephen and that after his decease he fall into the management of sir Samuel  Leonard his son and continue so for many year and till sir John leigh have a  modern report son upward of twentyone year of age under who care he be then  leave and the son be a guardian both to his father person and fortune for nine  year when the son unfortunate die after his death sir John wellwisher be so  sensible of his weakness that several neighbour gentleman be solicit to take  upon themselves a kind of voluntary trust and custody of his affair Mr Onslow  the speaker of the house of Commons be apply to among the rest and though he  decline anything personal himself yet he recommend it to other gentleman and  be at several meeting for that purpose at sir John leighs and upon advice one  among another sir John leigh seem to take no notice but say nothing and behave  like a person who be to fall under the custody of some one or other the  speaker advice he as he will warn a child from fire or water not to set his  hand to any write whatsoever the gentleman of the country undertake this trust  which they will not have do if sir John leigh have be capable to have act  without they and if he have be a man of any sense he will not have submit to  their governance over he beside sir John leighs natural infirmity he add by  his excessive drink for he will often get drink and Mr vade will drink with he  till twelve oh clock at night very frequent so that towards the latter end of  his life he be full of bodily disorder very lame quite blind of one eye and  almost dark of the other which be the case when be execute the will and  settlement and all these thing render he more liable to be impose upon beside  this general evidence of his weakness and he be easy impose upon there be a  special instance give which be this when it be judge necessary upon a  mortification to take off his toe and part of his foot Mr vade persuade he  that his toe will grow again and though the defendant say that this be a pious  fraud under this calamity to sooth sir John yet to be sure it be a great sign  at the same time of his weakness and incapacity it be prove by Mr Dicken the  surgeon and Mr cheselden who attend he in this mortification that in consult  upon his case they never regard the decorum of their profession but determine  upon their operation open before he without ever advice with he for they use  he like a child as they take he to be as weak there be another proof of  weakness of sir John in his marriage which be thus there be Mr vade a surgeon  and apothecary bring to attend a gentleman of sir John leighs quality and  estate under his mortification and find he under such a state of weakness that  be contrive with Mr Douglas a surgeon in London to marry he to Mr vad daughter  a girl of about sixteen year of age to a infirm man of about fiftyfive that  they talk before sir John about his marriage as though he be not in the room  and one of the company propose Mr vad daughter as a proper match but Mr vade  answer he will not marry his daughter to such a fool and madman however he get  the better of this nicety and on the fifteen of may when sir John leigh modern  report be in town he be make to believe that he be go to a Christian when he  be there they hurry he away to Mr Ghetons a colourmans in Longacre they tell  he upon his ask that he be go to a friend when he come to Mr Gheton there be  such immoderate drink of punch that he be quite fuddle Mr Douglas and vade  step for a fleet parson and Gill a servant who use to attend constant on sir  John person be send away with other servant to a alehouse the parson and the  young lady be then introduce and during the marriageceremony sir John be put  with his back to a chair and support under the two shoulder by Mr vade and he  be so drink and insensible that be can make no response and Mr vade once let  lose of his hold sir John fall down on his back unable to stand after this Mr  vade and his daughter take up their habitation at aldington and manage all  affair and sir John show no passion or concern at it but if he have be a man  of sense or spirit and not to the last degree weak he will have resend such a  infamous imposition upon he there be evidence on the part of the defendant to  controvert this and to show that sir John leigh be capable of manage his  affair though most of the deponent for modern report er p the defendant swear  that he be not able to judge of or understand the will or settlement or to  manage his property but several of the witness swear that he be a man of  learning a good scholar and capable of manage his concern nay one go so far  that he be as capable of do it as any man in Surrey but strong as this  evidence be in word it weigh very little with I because it be contrary to  plain fact admit on both side and when that be the case the fact must and will  speak for themselves but can anybody credit the evidence of some of these  witness when it be plain sir John believe his toe will grow again that sir  John tame submit to the indignity of such a marriage c the evidence of sir  John leighs be a excellent scholar that he understand classical author and  figure I do not doubt but that he be capable of learning something of this  nature for it often happen that people non compos or if not so yet very weak  may retain some thing or piece of learning which have be teach they in their  youth and yet the same people be incapable of remember fact or new incident  and you may go into bedlam and meet with people who will talk Latin and impose  upon some such witness as these as to the evidence of the defendant in regard  to sir John leighs capacity in manage his affair there be some thing show to  that purpose after the commission of lunacy issue in April Mr vade take care  to instruct sir John in some thing in order to show his capacity to manage his  affair to this purpose he make he write some receipt and copy other and to  talk with his tenant about money but it be prove that he can not distinguish a  guinea from a moidore or a pistol and after the marriage it be plain Mr vade  take upon he the whole care of his affair modern report as to the second head  of equity for the plaintiff it be prove in the cause that Mr vade have get sir  John leigh in his power after the marriage give rise to a commission of lunacy  be take out by the heir at law who now think it high time to do it and they be  not to be blame however upon the execution of that commission it appear a  great noise be raise in the country about it by the industry of Mr vade and  his friend as that the heir at law be come to take he into custody and to  deprive he of his estate and it often happen that the thing which the law  provide for the protection of a man and his estate be take to be a proceed  against he the commission do not succeed for he be find not to be a lunatic  upon which it be natural for sir John leigh to be provoke at these relation  for take out such a commission against he vade take care to incense sir John  upon this head and to say the worst of thing against Mr Bennett and Mr Spencer  and when Mr Bennett come to see sir John he be deny admittance and a letter be  send in sign by sir John leighs name to Mr Bennett but by who write do not  appear wherein Mr Bennett be desire never to come dear sir John more for he  will not see he but this letter no doubt be a contrivance for there be a copy  of it sign by sir John and attest by two person which in ordinary case be not  do but this be do for the justification of somebody when there shall be  occasion if these relation have be admit to see sir John they may have  acquaint he with their reason for such a procedure have beg his pardon and  have be reconcile to he but they be prevent from make any visit and with a  strong hand too a watchman be set upon windmill hill oh see when any coach be  come and that be not out of any apprehension of sir John be carry forcible  away for the many servant in the family will have prevent that and it be  design mere to exclude any intercourse between the heir at law and sir John  leigh Mr vade give order too that if any letter come direct to sir John leigh  that the servant be not to deliver they to their master or lady but be to keep  they till he come home and it be swear that a letter come direct to sir John  leigh which be open first by Mr vade and the intent be that if any letter come  which be prejudicial to Mr vad interest with sir John they be to be suppress  but if they be letter of course they be carry to sir John as to vad power over  sir John leighs affair he transact they as he think fit and make he sign any  paper he think fit to bring to he and at night when they be drink all person  be exclude from sir John leighs company except modern report er p those who Mr  vade admit and he will not suffer anybody to speak to he but in his presence  and when Mr parish come to sir John leigh from the speaker Mr Onslow to  inquire about his marriage Mr vade do not once go out of the room nay Mr vade  have gain such a power over he that his name be a modern report terror to he  and the nurse be use to quiet he like a child by repeat only the name of vade  as to the three point of equity for the plaintiff that upon the face of the  deed itself there appear to be fraud in the obtain of it it be a settlement by  lease and release bear date the nine and ten of September and sir John leigh  die in the November follow so that it appear to be obtain in the latter part  of sir John life when his infirmity have make his capacity less and Mr vad  power great by this settlement the whole estate be settle and convey to Mr win  Mr Tonks and Mr Welshman and their heir to several use videlicet to the use of  sir John leigh for life remainder to trustee to preserve contingent remainder  remainder to the first and every other son of sir John in tail remainder to  his daughter in tail but these remainder to his issue be only colourable for  sir John be grow very infirm and age and his wife dead so that there be scarce  any possibility of issue then a annuity be give to wildman and his wife and  the survivor of they for their life of forty pound ayear Chargeable upon and  issue out of the whole estate then as to the estate in Surrey after the above  remainder they be limit to the use of the defendant Francis leigh for life  remainder to his first and every other son in tail male remainder to the use  of Thomas leigh young brother of Francis in like manner remainder to Francis  Jones for life remainder to trustee for five hundred year remainder to his  first and every other son in tail remainder to his daughter in tail remainder  to Thomas leigh and his heir then as to the estate in ken and Middlesex they  be limit to the use of vade the defendant and his heir for ever then follow  some proviso the first that it shall be lawful for sir John leigh to demise  the land for a certain number of year or three life receive the most improve  yearly rend which can be get without fine and so as such lease be not make  dispunishable of waste then follow another proviso contain a power of  revocation wherein sir John leigh have the liberty to revoke or make void all  or any of the use clause limitation c include in the same settlement by any  write duly seal and deliver so as it be make in the presence of and attest by  James leigh of Beckenham in the county of Surrey John Eton dodsworth of  goodman field and James Douglas of London merchant by this settlement sir John  leigh have absolute disinherit his heir at law who be also his next of kin and  have give his Surrey estate to Mr Francis leigh who as the matter be before I  do not appear to be any relation to sir John leigh for there be no proof at  all how near in kindred he be to he nor do it appear that he be so much as  ever acquaint with he or that sir John leigh ever testify any friendship for  he a remainder of the same estate be limit to Mr Thomas leigh who be a modern  report material witness for the plaintiff in prove sir John leighs weakness  and Mr vad power over he as to the heir at law it be prove by Mr Scott that  when sir John leigh talk reasonable he be use to say he will bestow his estate  to his right heir as to the ken and Middlesex estate they be give to the  defendant vade who be no acquaintance at all of sir John till he attend he in  his mortification and who have no other merit but that of marry he and manage  his affair in the most infamous manner sir John leigh have a power over his  estate in feesimple and notwithstanding a will be the most proper way of make  voluntary disposition because of the little difficulty in revoke they and  notwithstanding there be a mortgage of three thousand pound upon the estate  yet be he persuade to make a voluntary settlement and to fetter himself in  such a manner that he can not in effect make any other disposition of it or  raise one shilling off it for his own benefit for as to the power of lease it  be make as strict as those in marriagesettlement for he be not to make lease  in reversion nor upon fine or small reservation so that he can not raise any  money modern report er p then as to the power of revocation it be of the most  extraordinary nature I ever meet with and speak imposition and it be certain  the framer of this settlement be sensible that if he have not insert some  power of revocation it will have be a objection to the deed in this court and  it have be almost foundation enough itself to set aside a voluntary settlement  that there have be no power of revocation in it for this purpose there be a  power of a revocation but such a one that it shall be in the power of Mr vade  or his friend whether sir John leigh shall ever have it in his power to  execute it or not for it be to be execute in the presence of three person  their executor administrator and assign be there any proof whether he be  acquaint with these three gentleman No be there any proof that be direct such  a power No it be say if there have be any charge of this nature in the bill  the defendant may have examine as to that but they have notice enough of this  objection for the settlement itself be impeach which be notice enough to make  defence in support of the power of revocation and the objection will natural  arise upon this proviso or power of revocation suppose sir John leigh have be  seize with a sudden illness and be desirous to make a alteration in this  settlement he can not convene these three gentleman together perhaps for they  will not possible come and if they have die sir John be under the necessity to  find out their executor administrator or assign it be say this part the  executor administrator or assign be nonsense because this be a personal trust  not assignable or transmissable to representative and I be of opinion it be  part nonsense and part not and I have know very foolish weak thing do with a  very villainous intention and these word executor administrator modern report  and assign fetter this proviso more for there may be no such representative  and if there be such it may be more difficult to find they than the gentleman  they represent but it be say in case there have be no representative or the  gentleman have refuse to have come and sir John leigh have do all he can to  convene they the revocation without their be present will be sufficient and I  be of opinion that such revocation will be good if execute for a valuable  consideration but if a voluntary revocation it will not be good for these  gentleman be to be check upon sir John to prevent his be surprise into  anything and they ought to have be present and he may have as well want to  have make a voluntary revocation as not but it be say if sir John want to  raise or borrow money or to sell his estate or to make any new settlement for  a valuable consideration that that will be good and prevail against any  voluntary settlement by the statute of Elizabeth c but sir John have not  knowledge enough to know that the law be so and I believe the party who draw  the conveyance know not so much but by this revocation they fetter sir John as  much as they can and if sir John want to raise money or to sell will any  prudent man have venture his money where there be so restrain a power of  revocation if the gentleman have refuse to have be present at the execution  they have get a will from sir John before but that be too slippery a thing for  they it be always revocable and sir John may be get out of their power and  revoke it and therefore they pin he down by this settlement this restrictive  power of revocation have be compare at the bar to the case of the duke of  Montague v bath a Chan case Chan Rep a that be a settlement make by Charles  duke of Albemarle who be go as governor of Jamaica in this settlement be  include a power of revocation in his grace so as it be execute in the presence  of six witness three whereof to be peer of England and it be say that his  grace be more restrain by such a power as this the n sir John leigh by the  present and yet that be a very good one but that be a different case and as to  what be say at the bar that his grace be then just go to Jamaica where it will  be impossible for he to revoke this deed accord to the expression for he will  not be able to get three peer of England in that island I have look into the  case and the fact be not take notice of there if so it be out of the case for  if he be to be resident in London it will be no difficult matter to execute  this revocation accord to the formality of it for it will be a very easy  matter to persuade three peer of England to be at the execution of such a  power of revocation and to attest it but it be modern report er p prove in  that case that the deed be make between relation of the family and that it be  draw up by sir Thomas stringer the family counsel by the direction of the duke  himself and peruse by sir William Jones who handwriting appear before this  modern report very proviso or power of revocation and sir William Jones also  be a witness to the deed and that be not like the present case for the present  settlement be not make to relation or people of the family no counsel advice  upon it and no instruction give for it by sir John leigh as to the manner of  the execution of this settlement it do not appear to have be read over to sir  John leigh at the time of the execution and indeed the ingrossment very often  be not read over if the draft have be read over before but Mr Wildeman who  prepare the draft swear be do read it over before sir John but I lie very  little weight upon that because thing be often say in his presence without his  take any manner of notice of they nor be this deed leave with sir John but  take away by dr vade how therefore can sir John tell how to execute this  special power of revocation and therefore this be a circumstance which make  this deed equivalent to a absolute conveyance in order to support this deed  the defendant have go into a general intention in sir John leigh to disinherit  his heir at law and to give his estate to the person to who it be limit in  voluntary settlement and from the will execute the seven of August and the  codicil in April and afterward the will which give these estate to the person  in the present settlement the counsel for the defendant infer that these  antecedent act prove that the present settlement do not proceed from surprise  but from intention but what be remarkable be that all those will be execute  after vade have get this power and influence over he and just after the  inquisition of lunacy be execute against sir John leigh and when he be under  resentment for that usage the first will of sir John leigh be a devise of his  estate to trustee to raise money to pay his debt and then a rentcharge of  eight hundred pound per annum be give to his wife Mr vad daughter he also give  her his house at Addington and one hundred pound per annum to maintain it in  repair and then give her all his personal estate then all his real estate be  give to himself for life remainder to the heir of his body subject however to  annuity to Twynie and stalker who be assistant in the marriage of thirty pound  apiece and these be like the annuity in the settlement to Wildeman Mr Stanley  say sir John leigh give he instruction to make this will but whether they be  in write or not do not appear or whether Mr vade have any hand in they this  will seem very modest for Mr vade upon the face of it have not give himself  anything but there be a codicil which the defendant be very unwilling to read  by which when produce it appear that sir John leigh give his manor of  Westwickham for five hundred year to Mr vade and then there be use to sir John  issue after this term Mr Stanley do not appear to have have any hand in this  but it seem to be the handwriting of Wildeman and this term be irredeemable  and modern report as good as the feesimple after this follow the will of and  by that he dispose of the estate after the death of the wife in the same  manner almost as to the beneficial use as he have do in the voluntary  settlement except as to sir Richard leigh who have no remainder in the  settlement Mr vade be make executor of this last will and have the personal  estate both these will be revoke be out of the question except as to the  evidence of sir John leighs general intention of the disposition of his estate  but I be of opinion there be no evidence at all of that for they be both make  after Mr vade have get the power over he and can make he sign what write he  will the case of standard v Metcalfe be where a settlement have be obtain from  mrs Barbara standard who afterward prove to be a lunatic and under a weakness  perhaps at that time this court incline to set it aside but its judgement be  alter by a will execute by mrs Barbara standard and a codicil thereto when she  be in her sense and not under the influence of the person who be benefit by  the settlement and this will and codicil be to the same use as the settlement  which show the general intention of bestow it accord to the disposition in the  settlement and it appear the draft be make of the settlement by the direction  of mrs Barbara standard and leave with her for her perusal and her intention  support by witness who be not party to or benefit by the modern report er p  settlement but none of these advantageous circumstance be in the present case  and the evidence to show the fraud in this settlement be very strong three  objection be make for the defendant the first that sir John leigh be a lunatic  and then the evidence of imposition be out of the case and it be to be try at  law the second admit it shall be take by the court that he be not a lunatic  yet there have be no imposition and that there be no sufficient evidence of  any such thing the three suppose there be evidence of fraud and imposition yet  it be such as the heir at law can take advantage of because there be the plea  of the intention of sir John leigh to disinherit the heir and if it be to set  aside the settlement it shall not be in their favour as to the first the court  be at liberty to take the evidence as a proof of weakness of mind for as a  jury of gentleman upon their oath find he not to be a lunatic it be reasonable  for the court to say he be not so and the boundary between weakness and lunacy  be so very narrow that the court must judge of they upon the fact and  circumstance upon which it appear to I that he be not non compos as to the  second objection the counsel for the defendant say if sir John leigh be not a  lunatic but only weak in mind that that modern report very weakness suppose he  under certain circumstance capable to do a act which act shall stand unless  there be evidence of imposition and it must be take he be capable to do a act  and then the question will be whether there be not imposition which I have  before decree there be and will not repeat but will in this place only take  notice of the evidence of dr Barnard for the defendant which from his know  character and integrity weigh much with I and it be in relation to the  execution of the will in the doctor be present at the read over and execution  of it and swear that sir John leigh appear to he to be of sound mind memory  and understanding at the time of such execution and what be mean by sound mind  c be prove from a former part of his deposition upon his talk with sir John  about classical learning and dr Barnard swear that sir John understand the  will and what be do and that he be capable of manage his affair by the  assistance of those be choose for be himself be lame and almost blind which be  a admission he can not do it without such assistance and it be plain what that  assistance be videlicet Mr vade who have the absolute management and conduct  of his affair as to the three objection whereby it be insist that sir John  leigh have a plain intention to disinherit his heir at law and be not impose  on in that and therefore no ground of equity to relieve the heir in give back  the estate to they contrary to the intention as to that it be to be consider  under what circumstance be become possess of the intention of disinherit his  heir at law and whether that do not proceed from the same imposition as the  deed do it be prove by Mr Scott that sir John often say that he will not give  his estate from his heir and when be it that be alter this intention why when  vade come to have the management of he and when the commission of lunacy be  take out by the heir at law which Mr vade take a opportunity to make a  occasion of disgust against the heir and the interception of the letter of the  heir at law to sir John be prove and this imposition be as plain as any  imposition in any other part of the case the person too who take the most  beneficial interest in the will and settlement say that the transaction be  most iniquitous and the heir at law may set the deed aside and this be prove  by two witness of Mr Francis leigh then as to the objection that if this  settlement be set aside the heir at law ought not to have the estate because  of the plain intention to disinherit they there have be instance where people  have be prevail upon to execute a settlement against their intention and they  intend to give the estate to another person yet when such settlement be set  aside the court can give the estate to the party design to have it but it go  to the heir at law which be the consequence of law and equity and it go in the  proper course of descent and there be the less reason to support this  settlement when the person who take the most beneficial interest admit the  will and settlement to be fraudulent and this case be very like that of top v  modern report Stanhope a brown p c a where a mother get her son sir John  modern report er p top into her power and by the assistance of dr Stanhope her  son by another marriage have prevail with he to leave his mansionhouse and  reside with they sir John top be a very weak person almost a lunatic and as  proper a object of a commission as sir John leigh when sir John top be there  they obtain settlement from he and it appear from the print case that the  circumstance be the same there as in the present case the only difference be  this they do not give he a wife to fetter he by that mean but he get one  himself who deliver he it be prove that he have fit that they keep all person  from have access to he intercept letter and do not suffer they to be deliver  to he they can make he sign what deed and write they please and make he copy  over letter they have dictate to he as to the settlement itself there be no  evidence of imposition as to mrs top and dr Stanhope but what arise from their  general conduct towards sir John top but for that and the general frame of the  deed they be set aside in this court and there be a appeal by the mother and  dr Stanhope against this decree which be affirm in the house of lord on the  twenty of may with one hundred pound cost the evidence of the weakness of sir  John top and the power and government of the mother and brotherinlaw be not  onetenth so strong as in the present case therefore the present settlement be  to be set aside and the estate convey to the heir at law b see Bates v greaves  vezey jun b