The second part of Reports of cases taken and adjudged in the court of Chancery, from the 20th year of King Charles II. to the first year of Their present Majesties, King William and Queen Mary Being special cases, and most of them decreed with the assistance of the judges, and all of them referring to the register books, wherein are setled several points of equity, law and practice. To which is added, the late great case between the Dutchess of Albemarle and the Earle of Bathe.

Dominus Bruce contra Gape, 32 Car. 2. fo. 723.

THe question in this case is,* 1.1 whether the Mannour of Mudghill, is within the de∣vise of the Duke of Somerset by his Will in August, 1657. of the Residue of the E∣state unsold, for the benefit of his three Daughters, and the Lady Bruce his Grand-Child,

or whether it belongs to the Lady Bruce only, as Heir at Law, and whether the same be liable, and comprehended in the Trust, together with other Manours and Lands, to Satisfie the 19100 l. Debts only, or is subject with the other Lands in the said Deed and Will for Satisfacti∣on of all the debts of the said Duke William.

The Case is (viz.) that the Plaintiff the Lady Elizabeth, Wife of the Lord Bruce, is Grand child and Heir of William late Duke of Somerset, and Sister and next Heir of William also late Duke of Somerset, who was the only Son of Hen∣ry Lord Beauchamp, the Eldest Son of William Duke of Somerset the Grandfather, which said Duke William the Grandfather, did by deed the 13 Nov. 1652. Convey to the Lord Seymour, Sir Olando Bridgman, &c. and their Heirs, the Mannour and Lands in Trust for payment of Moneys to the Lord John Seymour, and the Lady Jane Seymour: Then upon further Trust to pay Debts, amounting to 19100 l. and after in Trust for raising 10000 l. for the Lord John Seymour, and 6000 l. for the Lady Jane Seymour, and Trustees to account yearly to the right and next Heir of the said Duke, with a power of Revocation in the said deed, as to all but the said 19100 l. debts; and that the said Duke

William 19th of April 1654. as to a fur∣ther provision for the payment of the Debts by deed, conveyed to the Earl of Winchel∣sea, and the Defendant Gape and others, and their Heirs, the Lands in Wilts and Somerset, (worth 30000 l. and sufficient to pay all his Debts) to himself for life, and after for payment of Annuities, and after his death, then to the use of the last Trustees and their Heirs, upon special Trust, that they should lease out the pre∣misses, and with the Mony thereby rai∣sed, and otherwise with the profits, pay all such Debts for which the Plaintiff stood ingaged for the said Duke, and that the overplus of the said Mony and Profits to be paid, and the Lands unsold, to be conveyed to the right Heirs of the said Duke, wherein was a power reserved in the said Duke by deed or Will, to revoke the said Uses or Trust: That the said Duke by deed, the 20 of April 1654. reciting that the Lord Beauchamp the Eldest Son, died since the deed of the 13 of Novem∣ber 1652. and had left only one Son, and the Plaintiff Lady Bruce, and that the La∣dy Bruce was left unprovided for, and re∣citing the deed of the 19 of April 1654. made an Additional provision for the pay∣ment of his debts, which made the Lands the deed of 1652. of a greater value than would satisfie the said Trust, and therefore

appointed the last Trustees in the deed of 1652. should out of the Money to be raised by Sail of those Land, and the pro∣fits thereof pay the Plaintiff Elizabeth, Lady Bruce 100 l. per Annum, till her Age of 17, and after 300 l. per Annum, and then after the debts in the deed of 1652. and Portions to the Lord John, and Lady Jane Seymour, then to pay Elizabeth the the Lady Bruce 6000 l. portion also, with power of Revocation.

That afterwards the said Duke by Will, 15 of August 1657. having as aforesaid, secured the said 19100 l. debts, devised to his Son, the Lord John Seymour, and the Heirs Males of his Body, the said Man∣nour of Mudghill, and because the Lady Ann Beauchamp his Sister in Law, had the same as part of her Joynture, and the same was Leased out for the life of Pleydall, his Will was, that till the same fell in pos∣sessision to the Lord Seymour, the Trustees in the deed of 1652. should pay him main∣tenance, and they to convey to him, when they thought fit, and by the said Will, taking notice of the deed in 1652. and of the 19 of April 1654. and also of his power of Revocation, appointed and declared the Trusts in those deeds for his Grandson. William Lord Beauchamp, and the Plaintiff the Lady Elizabeth Bruce, or for the benefit of his Right Heirs,

should cease, and the same was thereby revoked, and appointed the Trustees in those deeds, to convey the said premisses to the Lady Frances his Wife, and the Earl of South-hampton, and the Earl of Winchelsey, and Sir Orlando Bridgman, and the said Gape and others, and their Heirs upon Trust, as to Mudghill, as he before had declared, and as to the rest of the Mannours and Lands on Trust, for pay∣ment of all such debts in the said Inden∣tures to be paid, and unpaid at his death, and for freeing his personal Estate, and Executors from the payment thereof, and of the Trust in the Deed of 1652, for the Lady Jane Seymour, and after these Trusts performed, all the Lands unsold and the Reversion thereof be disposed by the Lady Dutchess of Sommerset his Wife, and the Trustees by his Will and their Heirs for 21 years, from his death to such as the said Lady Dutchess should appoint, and in default of such appointment, for the raising such sums of Mony for the Plaintiff Elizabeth's portion and mainten∣ance, as the Deed of the 20 of April 1654 appoints or in default of such appoint∣ment by the Dutchess, to go to such Person to whom the Trust of the Inheri∣tance of the premisses, after the 21 years is limited by the Will, and the conveyance so to be made to the said Dutchess, and

the other person named in his Will, should be upon further Trust, that the said Dutchess and the other person should stand seized of the said Lands unsold, and the Reversion of such part thereof, as should be leased out for lives or years in Trust for William Lord Beauchamp, and the Heirs Males of his Body, and for want of such Is∣sue forthe benefit of John Lord Seymour for life, and after for the benefit; of the first, and every other Son of his Body, and the Heirs Males of their Bodies respectively, and for default of such Issue for the benefit of all his Daughters, and the Plaintiff the Lady Elizabeth Bruce his Grandchild, and all the Daughters of John Lord Seymour and their Heirs, equally as Tenants in common, and not as Joynt Tenants, which Will the said Duke in 1660 ratified by new publishing thereof, and all the Tru∣stees in the deed of 1652 being dead, ex∣cept Sir Orlando Bridgman and Gape, and the interest in Law being in them by Sur∣vivor ship, Sir Orlando Bridgman knowing the debts in the deed of 1652 to be paid, conveyed all the Lands therein mention∣ed to the said Dutchess of Sommerset.

That in 1671, the said William Lord Beauchamp Duke of Sommerset died with∣out Issue, whose Heir the Plaintiff the Lady Bruce is, and after the Lord John Seymour became Duke of Sommerset and

died without Issue, by whose death the Plaintiff the Lady Bruce is intituled as Heir to Duke William her Grandfather, to the reversion in fee of Mudghill, Duke John being only Tenant in Tail thereof, and ought to injoy the same, it not being liable to pay any debts, but is discharged thereof by her Grandfathers Will, and not disposed from her by any Act, the 19100 l. being all paid.

So that the questions now before the Court were, whether the reversion of Mudghill expectant upon Pleydalls Estate for life, as well as the residue of the Estate be liable to all the debts, which Duke William owed at his death, or only to the 19100 l. debts.

And secondly, Whether the reversion of Mudghill, as well as the residue of the Estate, after satisfaction of all the debts of Duke William, ought to be for the be∣nefit of all Duke Williams Daughters, and the Plaintiff Lady Bruce and their Heirs equally, or the said reversion to go intire∣ly to the said Lady Bruce, as right Heir to Duke William.

As to the first question, the Defendant insisted the said Reversion, as well as the other Estate is liable to all the debts, for that by the deed of 1652. Mudghill was conveyed for raising of Money for the pay∣ment of 19100 l. debts, and all other debts that he should owe at the time of

his death, in which deed it is provided, that after the said debts be paid, he might by any deed, or his last Will, Revoke all or any of the said Trusts, other than as concerning the 19100. debts, yet made no Revocation, other than by his last Will, and therein he Revoked, only those Trusts that were for the benefit of the Lord Beauchamp, or the Lady Elizabeth Sey∣mour or his own right Heirs, and by the said deed, the Legal Estate in Mudghill, is setled in the Trustees and their Heirs, and the Duke had no power to Revoke the uses or Estates, till after the 19100 l. was paid, and the said Duke directing his Tru∣stees to convey Mudghill to his Son John, he did thereby dispose of an equitable in∣terest, only of the reversion of Mudghill, and the 19100 l. was not paid in the said Dukes life-time, but great part remains un∣paid, and he hath contracted several new debts, since the 20th of April 1654. which the Defendant since paid upon the Securi∣ties of the said Lands, and Mudghill is one of the Mannours conveyed by the deed of 1652. for the payment of 19100 l. and all other the debts he should owe at the time of his death; and altho' the same be directed by the last Will of the said Duke, to be setled upon the Lord John Seymour, and his Heirs Males, yet the said Duke by deed of 1652. had no power to

revoke the same for the payment of his debts, or if he had, he did not revoke the same by the said Will; but left Mudghill and other the premisses subject to the pay∣ment of his debts; and the Trustees un∣derstanding such to be the Dukes intenti∣on, never setled Mudghill on the said Lord John Seymour, who being lately dead with∣out Issue, the same is subjected to the pay∣ment of the said Duke Williams debts, and when debts are satisfied, the overplus of the Moneys, and the said Mudghill, and all other the premisses ought to be divided, ac∣cording to the intent of the said Dukes Will, and by the said Dukes death, and the Relea∣ses of the said Trustees, the interest in Law became vested in Sir Orlando Bridgman, and he conveyed Mudghill, &c. unto the said Dutchess, and the said Gape and other the Trustees and their Heirs, that they might therewith pay the said debts; and though there be sufficient besides Mudghill to pay all the debts, yet by the Will upon which this question doth arise, that there∣by the Trust for the Right Heirs of the said Duke, are revoked in express Terms, so that by any deed preceding the said Will, the Plaintiff the Lady Bruce cannot claim any advantage as Heir, the rather, for that by the Will it doth appear, that Duke Wil∣liam had an equal regard to his own Daughter, and the Plaintiff the Lady

Bruce his Grandchild and Heir, and it can∣not be presumed, that he would more con∣cern himself for the Welfare of a Grand∣daughter, than his own Daughters, nor was the said Reversion of Mudghill, disposed to the Plaintiff by any words in the Will, though he did by express words in his Will, Revoke all Trusts, for the benefit of his Heirs in Mudghill, as well as the other Lands, and made other particular provisions further, which shews, he did not intend that for her, for if he had, he would not have Revoked the former Trusts, as to that by which she would have been intituled as Heir, especially, when he hath devised all the Surplus of his Estate, which involves Mudghill as well as the rest, amongst his own three Daughters, and her equally, nor doth it any where appear, that Mudghill is in any sort exempted from Satisfaction of the Creditors, nor could it so be by the said deed made by Sir Olando Bridgman, who best knew the intention of all Parties in this matter.

But the Plaintiffs insisted, That the said Duke could not intend Mudghill should be conveyed to the uses declared in the Will, for that the same is to be conveyed to the said Lord John, and the Heirs Males of his Body, which is an E∣state of Inheritance, and he had power

by a common Recovery to have bound the remainder, and the reversion after the Estate tale is not Assets in Law; and there∣fore cannot be conceived for the payment of his debts, and the rather, for that he recites deeds in 1652. and April 1654. and directs the Trustees therein, to convey all his Lands and Mannours in those deeds, to his Dutchess and others, as to the Man∣nour of Mudghill, as before he declared by his Will; and as to all the rest of the Mannours, he declared for the payment of his Debts, so that (all the rest) excludes the Mannours of Mudghill, and upon the whole Will it doth appear, the Duke in∣tended no Reversion should pass, but Re∣versions after Estates for life or years, and therefore this Reversion of Mudghill, which is after an Estate Tail, doth not pass, and if it had been intended to pass, he would have limited it to the said Lord John for life, without remainder to his first or other Sons in Tail, for he had before given him a better Estate in Mudghill to him and the Heirs of his Body, and the Trustees were not to set∣tle Mudghill accordingly, until the same fell in possession, the same being yet for Pleydalls life.

This Court on reading the several Deeds and Will, declared, That although the Lord John, might possibly have an Estate Tail in him, and doct it; but he not doing

it, this Court can take no notice of it, though probably he did forbear to do it, because Duke William had Signified his de∣sire,* 1.2 that he should not have an Estate executed to him, till it should fall in pos∣session, and not before, except the Trustees pleased: But the case must be taken, as it doth appear before the Court, that is, Mudghill was once liable to the payment of the Debts of Duke William, and tho' 'tis pretended that the Will hath taken out Mudghill, yet the said Will doth on∣ly take out an Estate Tail, but the Re∣vesion thereof, when the same falls in pos∣session, is subject to the same Trust, and goes in company with the other Reversions, and the same is legally conveyed, and doth pass in the general words, and therefore this Court is of Opinion, that the Rever∣sion of Mudghill, is part of the unrevo∣ked Estate, and that the Lord Bridgman did well, when he made the said Convey∣ance to the Lady Dutchess, and that when the 19100. l. and the said other debts are paid, to which Mudghill is as well liable, as the other Mannours and Lands, then the Trustees ought to convey all the premisses in Fourths, and decreed accor∣dingly.

Notes

• * 1.1

  Deed. Will. Revocation.
• * 1.2

  Reversion after an E∣state in Tail subject to Trusts for payment of debts.