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THE CASE OF Elizabeth Dutchess of Albemarle, and Christopher Monke Esquire, Appellants. AGAINST John, Earl of Bath, and others Respondents
THE Appellants Bill in the Chancery sought to be relieved against two Deeds of Lease and Release mentioned, * 1.1 to bear Date the 15 and 16th of July 1681: And that the E∣state Real and Personal of Christopher, late Duke of Albemarle, might go according to his Graces last Will, Dated the 4th of July 1687. And to have an Execution of the several Trusts in the said Will.
And the said Earl insisted on a Will of the 23d of August 1675, and on the said Deeds as well executed and duly obtained, and sought thereby wholly to avoid, and render ineffectual the said Last Will, tho' the same was most solemnly-made and intended by the said Duke to be the compleat and entire Settlement of all his Estate as herein after is mentioned.
The Court on the 8th July 1681, * 1.2 after four days De∣bate Decreed the Dutchess to have her Specifick Legacies, and the personal Estate to be accounted to Mr. Monke, and other∣wise to be applyed according to the Will of 1687. Which Decree for the Personal Estate has never since been que∣stioned. And the said Will of 1687, had also, before been solemnly sentenced to be a Good Will, and that the Duke intended the same so to be, by the Court of Delegates. But as to the real Estate, before any further direction to be given touching the same, the Court did think fit, and so order, That a Tryal at Law should be had touching the said Deeds of Lease and Release, in such manner as in the said Order is mentioned: and after the said parties were to resort back to the Court, for their further direction.
A Tryal was accordingly had, * 1.3 and there happened to to be a Verdict for the Defendants, and afterwards the Cause being several days again debated, before the Lords Commissioners, they took further time to consider thereof. But before they made any final Decree, that Commission was superseded. And the said Cause coming to be fur∣ther heard before the Lord Keeper, several matters were insisted upon, whereby in Equity, to establish the said Will of 1687, as the intire Settlement of the said Dukes Estate, notwithstanding the said Deed. His Lordship on the 22d of December last, pronounced a Decree there∣in, * 1.4 to this effect. That as to the Appellants, several Claims and Demands to the real Estate of the said Duke under the Will of 1687, against the Deed of 1681, their said Bill, should be dismissed, and did not Relieve the Appellants, as with humble Submission ought to have been done. And therefore they have brought this Appeal, wherein the General question is, Whether the Deeds of 16 July 1681, or the Will of the 4 July 1687 in Equity be construed to be the true Settlement of the Duke's Estate.
Observ. 1st. That in this Decretal Order, as now entred, of all the matters offered and debated in Court, after four days were spent herein, there is not any one particularrea∣son given for the Judgment of the Court, as is usual in Cases of so great consequence: But only in general, That the Court saw no Cause in Equity to Relieve
2dly. That the Lord Keeper and Judges did lay great stress on the Verdict, and that there had been no motion for a new Tryal And that so the Deeds must be now sup∣posed to be taken as good Deeds: Which 'tis humbly ho∣ped will not now be of weight; For there was nothing insisted on at the Tryal but the Fact only. And so the Verdict is or ought to be of no further Evidence, than that the Duke sealed the Deed. And there was no motion for a new Try∣al: Not because the Appellants were satisfied with that Verdict, or had, as they conceived, any reason so to be. But because it was and is conceived, That supposing the Duke did Execute such Deeds, there are matters in Equi∣ty arising out of the Deeds themselves, and otherwise relating thereto, sufficient to set the same aside, or ren∣der the same ineffectual. First, Either as unduly obtained, Secondly, Or as unduly secreted and concealed from the Duke. Or Thirdly, as in Equity revoked by the last Will of 1687. Or Fourthly, as a Trust resulting for the Duke, whereby this his last Will of 1687, may have its full effect, and operation. But before these Points are severally con∣sidered, it is necessary to see what the Will and Deeds are; and under what circumstances they stand,
And were the Fact, the direct question at present, it would be remembred and is proved: * 1.5 That when the Deeds were first produced by the Earl, they were read by his Lordship's own Counsel, to be dated, the Lease the 15 July 1681, and the Release the 16 July 1682, at which great no∣tice was taken, and with much difficulty Mr. Bowes and Mr. Buttler got the Earle's leave to look on the same, and observed the Lease to be 1682, as the same had been read, and with those two Witnesses concur, the Lord Cheney Mr. Cheney, and Dr. Barwick, and thereof Mr. Bowes, and by Lord Cheney's direction, Mr. Cheney then entred several Memorandums in writing: And on sight of the Deed of Re∣lease, there appeares now a plain Razure, both in the Year of the King, and in the Year of our Lord but in no other word throughout the whole Deed, for ought appeared.
Now the difference was very material, not only because if the Release were 1682 (as these five Gentlemen say it was), it would not only be void at Law (the Lease being determined) but Sir William Jones, whose name is En∣dorsed as a Witness, was dead in July 1682.
As also, That it now appears to have been Engrossed at the Earls House, at St. James's, and by his direction, by one Thompson, who hath been the Earls Scrivener for these thirty Years. Whereas the Earl by his Answer says, he knows not who Engrossed it: But it being of great moment and secrecy, was all committed to the Care and Conduct of Sir William Jones.
And also, that Thompson on his first Examination swore, That in 1687 he Ingrossed for the said Earl a Deed of the same purport, as this, (whereas this Deed is dated 1681) and remembers not that ever he Engrossed any other. But when he is afterwards produced by the Earl, then there is shewn to him a Parchment prepared to be, but never Executed by the Dake. And this he says, is what he Engrossed for the Earl in 1687, (as is said, prepared in 1687) both as to the Power of Revocation, and eve∣ry thing else is the same in words with the Deed of 1681, saving only the last Covenant not to revoke the Will of 1675 And Thompson says, he thought it had been Exe∣cuted in 1687, and this done without the Duke's dire∣ctions, or any occasion for the same: for if the Duke had before Executed the other, and had it in his Custody, (as is said by the Earl in his Answer) what need was there thereof?