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2. NIcholas Slaning of Bickley was seised in his Demesn as of Fee, of the Mannor of Bickley, and of a Mill in Walkhampton, in the Coun∣ty of Devon, called a blowing Mill, and of another Mill there called a knock∣ing Mill, and of an acre of Land there also, and of divers other Mannors and Lands in the said County of Devon, the said Mills and acres of Land in Walkhampton, then being in the possession of one Peterfeild, and Atwill, of
an Estate for divers years then to come, and being so seised, he with Margaret his Wife levied a Fine of the said Mannor of Bickley, and of other Lands, omitting the said Lands in Walkhampton, to certain C••∣nuzees, who rendred the same back again to the said Margaret Slaning for her life, with the remainder over to the said Nicholas, and his Heirs: After which the said Nicholas by Indenture daied 30. Octob. 21 Eliz. gave and en∣feoffed all the said Mannors and Premisses to John Fits and others, and the Heirs of the said Fits, to the Vses, Provisoes▪ and Limitations mentioned in the said Indenture, which was to the use of himself, and the Heirs Males of his body, by any other Wife, the remainder to Nicholas Slaning of New∣ton Ferries, and the Heirs Males of his body, with divers remainders over, with this Proviso, to wit, Provided, and it is the intent of these presents, and of the parties therunto, that the said John Slaning, and the Heirs Males of his body, or the said Nicholas Slaning of Newton-ferries, and the Heirs Males of his body, in whomsoever of them the Inheritance in tail of all the Premisses shall happen to be by force of these presents, shall pay to Ag∣nes the Daughter of the said Nicholas Slaning of Bickly, 200 l. or so much therof as shall be unpaid at the time of the death of her said Father, according to the intent of his last Will, with a Letter of Attorney to it, by which he ordains John Hart and Robert Fort, joyntly and severally his Attorney to en∣ter into the said Mannor of Bickley, Walkhampton, &c. and all other the Lands, Tenements, and Hereditaments, in the said Indenture mentioned, and possession for him to take, and after such possossion taken for him and in his name, to deliver full possession and seisin of the Premisses to the said John Fits, &c. according to the form and effect of the said Indenture, wher∣upon possession and seisin was given of all but that which was in possession of the said Peterfield and Atwill: And the said Pererfield and Atwill, nor either of them never attorned to the said Grant: After which Nicholas Slaning of Bickly made his last Will, by which devised to the said Agnes his Daughter 200 l. to be paid in form following, and not otherwise, to wit, 100 l. therof, in th••se words, On that day twelvemonth next after the day of his death, and the other 100 l. that day twelvemonth next after, &c. and made the said John Slaning his Executor, and afterwards, to wit, the 8. day of April, 25 Eliz, died without Issue Male of his body, the said Agnes took to Husband one Edmund Marley, and upon the 8. day of April, 26 Eliz. the said John Slaning paid the first 100 l. to Agnes then being living, and upon the 8. and 9. daies of April, 27 Eliz. Nicholas Slaning of Plumpton, Son and Heir of the said John Slaning, who died (in the mean time) an hour before the Sun set, and untill the S••n was set, came to the House where the said Edmund and his Wife inhabited in London, and tendred the last 100 l. and that nei∣ther the said Edmund nor Agnes his Wife were there to receive it, but that the said Edmund voluntarily absented himself, because he would not receiv•• the 100 l. and that therupon the Wife of the said Edmund died, having Issu•• two Daughters, the Lands being holden by Knights-service in Capite, and the said Daughters being yet within age, and all this being found by Office, by the opinions and resolutions of Popham and Anderson, and the rest of th•• Councel of the Court of Wards, the said Heirs now in Ward shall have no∣thing but that which doth not passe by the conveyance to John Fits and his joynt Feoffees, which was only that which was in the possessions of Peter∣field and Atwill, and that the Livery was good of the rest, albeit the Attorny did nothing of that which was in Lease, notwithstanding the words of the Warrant, that they should enter into all, and then shall make the Livery.
And they agreed, that the Condition doth not ••ind neither the said John Slaning nor Nicholas his Son, because they had not all the Land according to
the purport of the Condition, which was, that he who had all therof should pay the 200 l. wheras here that which was in the possession of Peterfeild and At∣will did not passe to them for want of Attornment, for a Condition ought to be taken strictly.
And further the payment was referred by the Indenture to be according to the Will, or by the Will, and the 200 l. was devised as a Legacy, which ought to be paid but upon demand, and not at the peril of the Executor, and therfore the nature of the payment of it is altered by the intent of the Will, and being not demanded, there is no default in the said Nicholas Slaning of Plumpton, to prejudice him of his Land, if it had been a Condition, for then it shall be but a Condition to be paid according to the nature of a Legacy up∣on demand, and not at the peril of the party. And whether the word twelve-month shall be taken for a year, or twelve months, according to 28. daies to the month, as it shall be of eight or twelve months, or the like. And they agreed that in this case it shall be taken for the whole year, according to the com∣mon and usuall speech amongst men in such a case, and according to this opi∣nion Wray (who is dead.)
Anderson and Gawdy made their Certificate to the late Chancellor Sir Christopher Hatton, in the same case then being in the Chancery, and a De∣cree was made accordingly.
And many were of opinion, that by his absence, by such fraud he shall not take advantage of the Condition, being a thing done on purpose, if it had been to be performed at his peril.