The case of Elizabeth Dutchess of Albemarle, and Christopher Monke Esquire, [brace] appellants. Against John, Earl of Bath, and others respondents

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 , The proceedings in Chancery , and state of the Case . to bear Date the 15 and 16th of July 1681 : And that the Estate 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 , First Decree . The Will of 1689 , confirmed as to the personal Estate and a Decree for Account accordingly . after four days Debate Decreed the Dutchess to have her Specifick Legacies , and the personal Estate to be accounted to Mr. Monke , and otherwise to be applyed according to the Will of 1687. Which Decree for the Personal Estate has never since been questioned . 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 , Tryal at Law , and the Cause again heard . 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 But before they made any final Decree , that Commission was superseded .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 further 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 therein , Second Error . 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 particularreason 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 supposed to be taken as good Deeds : Which 't is humbly hoped 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 Tryal : 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 Equity arising out of the Deeds themselves , and otherwise relating thereto , sufficient to set the same aside , or render 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 considered , 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 : Some of the Evidence as to the Fact of the Deed. 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 notice 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 Release , 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 Endorsed 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 every 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 Executed in 1687 , and this done without the Duke's directions , 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 ?

As also , That after July 1681. the Earl was advising with my Lord President how he might procure a Settlement from the Duke .

As also , That the Seal of the Duke's Coat of Arms , which is upon this Deed , was cut by Mr. East , for the Earl of Bath , and the Earl paid him for that 3 l. 10 s. and also for another small Seal of his own Arms at the same time . And the said Mr. East still hath the impression of both Seals , which he kept in soft Wax .

As also , How many Witnesses , well acquainted with the Hand-writing of the Duke , and Sir William Jones , and Sir John Coppleston , have sworn , they do not believe these to be so . With other Evidence offered on that Subject , of the Fact .

But more immediately towards the Points of Equity , it is to be considered ,

That the Will of 1687. Contents of the Will of 4 July 1687. contains a fair , compleat , and honourable Settlement of all the Real and Personal Estate ; some part to the Dutchess for Life , some part to his Friends and Relations , and Legacies to others of them , and particularly to Bevil Greenvill , younger Son of the Earl of Bath , Lands worth 30000 l. and to Sir Walter Clargis , after the death of the Dutchess , Lands , to the value of 1500 l. per annum , or thereabouts . It devises a Monument not exceeding 5000 l. to be erected for himself , his Father , and his Mother ; and devises Alms-houses to be built , and a Charity of 200 l. per annum to Twenty poor Widows , pursuant to the intention of his Mother , and provides well for the payment of his Debts , and leaves the inheritance of the greatest part of his Estate to his Cousin Col. Tho. Monke , and his Sons in Tail-Male , with Remainder to his Cousin Col. Henry Monke in Ireland and his Sons , with other Remainders over ; and contains his humble Request to His Majesty , in memory of his Father , and his own Services , to create the said Col. Tho. Monke ( the Appellant Monk's Father ) Baron Monke of Potheridge , and to the Heirs Males of his Body ; so that the Name of Monke , and his Estate , may to Posterity remain together .

And because the Earl , by his Answer , has made his Case , and accordingly the Court have seemed to take it highly reflecting on the Duke's Honour , That the Duke , at the very time of making the Will of 1687. intended the same should be void , and signifie nothing , and the Deed stand , and that the Duke sent him to Counsel , to advise , Whether the Deed could be avoided by a Will ? and he told him , It would not : Wherewith the Duke seemed well pleased . It is therefore to be seen what Steps the Duke made about it ; and the whole may be put upon that issue , Whether the Duke in this Case was guilty of so much Folly , Prevarication , and Dissimulation towards GOD and the King , his Wife and Relations , when he had no sort of Benefit or Temptation upon him so to do ; as not really to intend that to be effectually his Will which cost him so much care and pains , and which was so solemnly perfected , as will appear .

The Proofs of the Sincerity of his Intentions , Prooss of the Sincerity of the said Duke's Intentions , by the last Will of 87. some of them precedent , some of them concomitant , and others subsequent . and the Freedom of his Mind , are some of them precedent to the Will , some of them concomitant , and others of them subsequent .

Sir Henry Bellasis and Sir Robert Clayton swear the Duke's declaring his Intentions precedent before the Will prepared , who he intended to give Col. Monke in Holland the best part of the Estate , and how he intended to setle the same . And Sir Robert Clayton , That the Duke sent him for the Lord Chief-Justice Pollexfen to draw it ; and in order thereto , sent to the Earl of Bath for a former Will of his he had made : Which accordingly the Earl of Bath confesseth he gave him in December 1686.

The L. Chief-Justice Pollexfen swears , He went with Sir Robert Clayton , and drew the Will , by Directions and Instructions from the Duke 's own Mouth , and was often with him about it , and that several Alterations were by the Duke's Order made in it , and that the Matter was long transacting and setling , and that he never saw any man more earnest to have his Will well done , and according to his mind ; and when he had finished the Draught , he read it to the Duke , and after some amendments again thereupon made by the Duke's directions , he was desired by his Grace to get his Clerk to engross it , leaving blanks for the Executors Names ; and the Duke desired him to be one of his Executors , to which he consented ; and , that Sir Thomas Stringer was some of the times present with the Duke and him about it . That it was published at Sir Robert Clayton's , after the Duke had there Executed the Deeds of the Mannors of Dalby and Broughton to Lord Jefferies , in the presence of Three Witnesses , and of Sir Tho. Stringer , who did not subscribe , because he was one of the Executors . And for the greater solemnity , the Duke hath to Three several parts , each containing 19 sheets of Paper , and to every sheet of each part subscribed his Name , and affixed his Seal , and caused the Witnesses likewise to subscribe their Names to each sheet , and afterwards sealed them under three several Covers , and endorsed on all the Covers , with his own Hand , these words , My Will , the 4th July , 1687. He kept them all in his own custody till his going to Jamaica , and then delivered one of them to the Lady Eliz. Pierpoint , to be given to the Dutchess of Newcastle ; another of them he gave to the said Col. Monke , whom he had sent for from Holland for that purpose , and writ to his present Majesty , then Prince , to procure him Leave to come , and did treat him , his Wife and Son , with Lodgings and Dyet in Newcastle-House , with himself , and made him a Present of 3●0 l. for his Expences in coming over . The third part thereof he carried with him to Jamaica , where about a fortnight before his Death he re-published the same , and kept it in his strong Box , amongst things of the greatest value to him , and directed the Keys thereof to be given to his Wife , in case he relapsed and there dyed

Besides all these Solemnities , Letters between the L. of Bath , the Duke , and the Trustees , about Monke , in confirmation of his Last Will . and the great care and concern of the Duke , in his said Will , for his Kinsman Col. Monk ; when afterwards the Duke in Jamaica heard of the death of the said Col. Monke , he put himself and Family into Mourning . And not only the Duke , but also the Earl of Bath , Sir Walter Cla●gis , Sir Tho. Stringer , and the rest of the Duke's Trustees , looked on the Appellant Christopher Monke , eldest Son of the said Colonel , as the person who would have the Duke's Estate in case of his death : Which appears by Letters even under the Earl of Bath 's and others of the Trustees Hands , recommending it to the Duke , on the death of Col. Monke ; That since his Grace had thought fit to promote that Branch of his Family ( how remote soever ) into so great a share of his Favour , there should be something done towards the breeding up the Children , to make them appear in the World answerable to that figure which his Grace had designed they should one day make in it . Such is the one of the Letters signed by the Earl of Bath . And divers other Letters there are to the same effect , as also from the Duke , in Answer , directing , That the Earl of Bath and Trustees should forthwith send into Holland for the Appellant Christopher , and that Care be taken of him , to have him well educated ; That he may ( as the words of the Letter go ) receive such improvement as is proper for what I have already designed him ; and therefore think it convenient , that he be put under the Tuition of Mons. Faubert ; and that particular Care be taken to see it done , and give me an Account , from time to time , how he proceeds in his Studies . And accordingly the Trustees , and particularly the Earl of Bath , who took upon him the greatest Trouble thereof , agreed for him , and a Servant with him , to be at Monsieur Faubert's , at above 200 l. per annum Expence ; and the Earl of Bath often visited him there . Whereas if this Will of 1687. be not the Real Will and Setlement of the said Duke , ( but that the Deed of 1681. should stand ) there 's nothing at all given to the Appellant Mr. Monke , to make a Figure , or bear any Character , as the Letters go .

The Earl of Bath , by his Answer , The Earl's Answer about Faubert's . goes to explain all this , and says , That Faubert's was the place where the Duke used to breed his Pages to Fencing and Riding ; and has also proved it by a Witness ; but he hath not shewed , That such Expressions as are in the Letters were usual with the Duke or himself , in relation to the Pages , viz. What Figures they were to make , and what Characters they were to bear one day in the World , and how many Pages the Duke did breed with a Servant at such expence , and how many Visits the Earl did ever make the Pages , as he used to do Mr. Monke , and how many of the Pages were to proceed in their Studies there as the Duke directsr Mr. Monke should do .

And as to the pretended Importunities of the Dutchess to obtain the Last Will , it is fully answered .

The Duke and Dutchess always lived well together ; Dutchess's pretended Importunities answered . neither was it her Interest in any sort to set up Mr. Monke , for Col. Monke was much a Stranger , in comparison of the Earl of Bath , who tells by his Answer how many ways he had obliged her . Besides , this Deed ( if Dalby and Broughton had not been since sold ) setles very near as much Land on her as the Last Will .

And the Lord Ch. Just. Pollexfen swears , he used to be with the Duke in the mornings , and that he acted , freely and was in a very fit condition to make a Will .

And Mr. Bowes swears he recommended it to the Duke , instead of the use of the Goods for Life , to give her the property of them , and that he refused . As also , denyed to give her the Inheritance of that which had been her Fathers Estate at Grindon , which shews the litlte influence she had : And likewise that the Duke expelled the Will to be good . But yet his esteem for her appears in that , in the Will produced by the Earl of Bath , and in a Will of 1673 , and in all his Wills , he named her sole Guardian of all his Children , if he had any .

And it is further here to be considered , That the Duke had too much Courage to do any thing through fear , or importunity ; and more Honour than so to dissemble either with the Earl , or Colonel Monke : but the natural construction which saves the Duke's Honour , is , That in 1675 he might intend some part of his Estate to the Earl of Bath . But in 1687 , when Colonel Monke 's great credit in the Army had more endeared him to the Duke , and he had hopeful Sons , and the Eldest Son his Godson , and the Duke as by the Will is expressed , desiring that the great part of his Estate should continue in his own name , really intended it for Mr Monke and his Sons , &c. and yet was bountiful also to the Earl of Bath 's Son , as aforesaid , and he might well in so many years alter his intention . And as to the Deed in 1681.

Now that this Deed must have some way by Surprise , Surprixe in Reference to the Deed of 1681. or other undue means , have been imposed upon the Duke , appears by the circumstances that attend it , and from the face of the Deed it self : There 's not the least proof offered , that the Duke ever gave any directions for it , or read , or heard one word of it read ; nor that ever there was any Copy or Counterpart . And upon reading thereof , it appears in very unusual manner and expressions , to labour extreamly to make a shew of a Consideration .

And then for the Substance thereof , It is absolutely inconsistent with it self . It recites a Will of the 23d of August 1675 ( which the Earl of Bath says , is the Will the Duke took from him in 1686 ) : and it misrecites several things of it ; Then it says , it is intended thereby to Corroborate and Confirm the Will , and yet entirely revokes and contradicts it , and limits the Estate to different uses , except only the Mannor of Midgham and Tile-Mills , which only are to the same uses : But then this Devise , in which they only agree , is written on the Margent of the Will , in the Earl of Bath 's own Hand : but by what Order or Authority from the Duke doth not appear .

And here it is also to be noted , That the Devise to the Earl of Bath and his Heirs , is on the sixth Sheet of this Will of 1675 , and that this sixth Sheet of this Will is of a different Paper , different Hand-writing , and a different Seal from all the rest of the Sheets of the Will .

The Will of 1675 , Further instances of Surprize . gave all the Dukes Estate to his own Daughters in case he had any , before the Earl , or his Sons or Daughters , as good reason there was . But the Deed of 1681 limits the Estate in Essex and Lancashire , &c. to the amount of 5000 l. a Year , so as the same would go to the Earl of Bath and his Daughters before the Dukes own Daughters . Which seemed not Answered , in saying that the Duke might expect the Earl would be created Duke of Albemarle , and do it for his support , but certainly the Earl's Daughters were not to be Dukes , and yet they would by the Deed carry the Estate from the Duke's Daughters .

Part of the occasion of making the Deed , the Earl says by his Pleadings , was to make Provision for younger Sons , in which his Marriage-Settlement was defective . And yet , the Lands settled by this Deed of 1681 , for such Younger Sons are Redrisse , Norton , Disney , &c. which by the Marriage-Settlement were settled on the Duke 's Eldest Son .

Then the extraordinary nature of the Power of Revocation , That it must be done in the presence of six Witnesses , and three of them Peers , whereby the Duke put himself under great incapacities ; some times it might be impossible for him to get three Peers , as it was in Jamaica ; And if he had them , he was in their power whether they would be Witnesses or no. And thereafter comes the Covenant , not to Revoke or alter the Will of 1675 , which by that Deed was actually Revoked , as aforesaid .

Nor had the Duke himself any power by the Deed to make Leases : and yet all this must be kept from the knowledge of the Duke , and so he knew not how exactly to pursue it .

But the Earl Bath by his Answer , The Earl of Bath's Answer about the Ingrossing the Deed , and Sir W. Jones . to give the greater credit to the Deed , says , That he knows not who Engrossed it , but it was committed all to the Care and Conduct of Sir William Jones , and he came to be a Witness to it , at Albemarle - House , and believes Sir William Jones read it to him before it came to be perfected , and that the Duke was often with him about it , after the time that Sir Tho. Stringer had prepared the Draught , but was not to be trusted with the knowledge of the Execution of it .

Now when the Court observed the strange frame of the Deed , and the many Inconsistencies , Improprieties , and Conitradctions therein . They declared , That they did not believe that ever Sir William Jones drew the said Deed , only was consulted upon the Provisoe , which seems not to consist with the Earls Answer , which says , that the Care and Conduct of the wholewas committed to Sir W. Jones . And it now fully appears , That Sir William Jones has no hand in the Engrossing thereof ; but it was done by Thompson at the Earls House , as aforesaid .

And the great Secrecy , not only in the obtaining , Concealment . but concealing thereof appears , in that it must not be known to the Duke of Newcastle , or any of the Trustees therein ; nor to Sir Walter Clarges , who has an Estate thereby , and was the Duke's intimate Friend and near Relation ; nor to Sir Thomas Stringer , who , it is said , drew the Draught . But yet the Earl's Answer confesseth he was not to know of the Execution thereof , lest he should tell the Dutchess , tho she hath so great an Estate thereby , that it was her interest to espouse it , and thank the Earl for his great kindness expressed in his Answer , by prevailing with the Duke to make her Estate thereby so much better than it was before .

Then that the Duke with the privity of the Earl of Bath , sold Dalby and Broughton to the Lord Jefferys , as also Bitchfield before , without the least notice either by the Duke , or the Earl of any such Deed : And made many Leases without fines , which he had thereby no power given him to do . And also made divers voluntary Conveyances , and Grants of Rent Charges of 100 l. per annum , to one , & other voluntary Annuities to his Friends and Servants , which would be avoided by the Deed. And all the subsequent acts of the Duke so inconsistent therewith , That it is next to impossibility to think that the Duke should have done the same , and yet be acquainted with the said Deed.

And the Lord Ch. Just. Pollexfen , and Sir Robert Clayton say , that they enquired on the said occasions , what settlement the Duke had made , and could hear of none , but the Marriage-Settlement in 1669. Besides , Mr. Courtney says , it was under great Injunctions of Secrecy , the Earl spoke to him about it . And the Earl offers no proof that it was ever seen in the Duke's Custody , or delivered to him by the Duke , from the time of the first Execution thereof , only says the Duke gave it to him in his Bed-chamber , and no body present , unless some body might be behind the Bed . And there is nothing does more clearly prove the Concealment of the Deed from the Duke , than his great Care about his last Will in 1687.

However , Third General Head : it is in Equity Revoked . though the Power of Revocation be not litterally pursued , so as to be a Revocation in strictness at Common Law ; yet in Equity under these circumstances , the said last Will of 1687 , ought to be adjudged a Revocation thereof , as made pursuant to the intent of that power thereby reserved to the Duke : The Witnesses according to the Letter of the Power ought to be six , and three of them to be Peers , but they need not all be present at the same time , nor all to subscribe their names . Now though there were only three Witnesses present at first , yet there were many more than six , to whom the Duke afterwards published it here and in Jamaica : So that there wants neither number nor credibility of Witnesses , only quality for three of them , which 't is hoped will be no objection in this Case ; when it was not possible , when he last published the Will in Jamaica , to have it .

But the Court would not allow this in Jamaica to be a Publication , being accidental , though it was plain in the proof , That the Duke took it then in his hand , and told the Witnesses it was his Will , and directed the Keys of his strong Box , where it was kept , to be given to the Dutchess if he dyed : And the more accidental it was , the more it shewes the Innocency and Sincerity of the Duke's intentions .

It does appear upon the Face , ●●●ching the ●●●t of Trust . and by the express words of the Deed , that the Estate limited to the Earl , is upon this special Trust and Confidence , That he shall sell so much of the Lands as shall fully and honestly pay all the Duke 's Just Debts , and Legacies , and Funeral Charges , as much as the Personal Estate comes short in the Payment thereof by his Executors in his said Will mentioned .

So that , according to this very Deed , whatsoever Debts the Duke had contracted , or should contract , though not in the presence of Six Witnesses , and tho' they were to the full value of the said Estate , the Earl must , by the Letter of the Trust , sell the Estate to pay the same ; and so must he have done to satisfie all the Devises and Legacies , which the Duke at his pleasure should make or give by any other Will , were it not for the Addition of those Five Words , viz. ( In his said Will mentioned . )

Now , when one of the chief Considerations of the said Deed is expressed , to corroborate that Will of 1675. and make good those Legacies given thereby ; and that the Last Will does so plainly revoke that Will ; and that the Earl by reason thereof would now have the whole without paying the Legacies ; What more just construction , than that this Deed , Reasonable Construction of the Deed. as the Case was in Dyer's Reports , should be constructed , quasi a Will : And that there was a Trust for the said Duke , who might have charged it to the full value ; and that thereupon the Last Will of the first and last Owner of the Estate may not be frustrated .

Nay , by such Construction several of the chief Ends pretended even of the Deed , will be also answered ; for , the Descent to the Posterity of a Regicide , as also the Heir of any other person setting up any Counterfeit or Surreptitious Will , which are intended to be obviated by the Deed , will be as well this way prevented , as they are by the Deed , or any other Construction . And the rather also ought such Construction to be made , for that in the Draught which is produced as a Support of the Deed , just after the said five restrictive words , viz. ( In my said Will mentioned ) there appears so much of that sheet as would contain two lines hath been cut away from the bottom , where the said five words end : And by the remaining Heads of the Letters it appears , there was another line writ before it was cut , which might very well be to pay his Debts and the Legacies in the said Will mentioned ( or in any other Writing to be made or appointed ) . And if the words had been so , they will not deny , but that the Last Will would have had effect thereon .

NB. This cutting off the under part of the Draught in this material place was never Observed till the Last Hearing ; and till a good account be given , how the words came to be cut , they should be presumed to be for the Appellant's Advantage .

Now , for the Privy-Seal which the Earl hath , promising , that the King would create him Duke of Albemarle , and also give him that part of Theobald's which was to revert to the Crown , Answer about the Privy-Seal , and the old and late Duke their Services & Friendship . and is said to be got at the instance of George Duke of Albemarle , in case his Issue Male failed .

It is plainly answered , That both those were things entirely the King 's , but that the Duke never intended him any of his Estate . He made a Setlement on his Death-bed of all his Estate , and also before had made his said Will , and was so far from giving the said Earl any part of his Estate , that he did not so much as Name him a Trustee in either of them ; and by his Will appointed nine Guardians of his Son , but the Earl of Bath none of them ; and , That it was not Duke Christopher's constant Intention , appears by a Will of his made in 1673. whereby the bulk of his Estate is divided amongst his other Relations , and nothing given to the Earl of Bath , but a small Remainder after an 〈…〉 ●erril Greenvill .

And for his Relation , Friendship , and Services , All that may be , without his having the Estate , and the Friendship and Services as is believed , were fully returned ; and if they were not , the Duke remembred them sufficiently by the Last Will , in the said Devise to his said Son .

As to Col. Monke deceased , About Colonel Monke . who ( now he is not to speak for himself ) has been greatly disparaged , he was publickly known to be a Gentleman of great Worth and Honour , and as such was raised in his Profession . He had the advantage of the Earl , by being of the Duke's name , for whom , and for his Name , the Duke expressed great Regard and Concern ; and on all occasions in Company , and by Letters and otherwise , the Duke called and treated him as his Relation , and one of the Friends he loved best , which is Reason sufficient for what he did .

Lastly , It is to be noted , Court declared several things mysterious , and not to be understood . That though there be a Decree against the Appellants , yet in the giving their Opinions of the said Matters , as to the Stories of Thompson , and some other things , it was declared on the Bench , They were so mysterious , they could not be understood . And therefore it was by another on the Bench declared , He would leave several things out of the Case as mysterious , and to that effect . But it is with humble submission offered to consideration , Whether the Reason and Argument be not better , That they ought therefore to be brought into the Case , and that the Deed ought therefore to be set aside ; considering that the Earl of Bath , who pioduces it , was all along privy , as he says , to every thing of it , and not as a Stranger thereto .

For all which Reasons the Appellants humbly hape their Lordships will Order the said Decree to be Reversed , and the Appellants relieved , and that the said Last Will , so solemnly made , as aforesaid , may be Established , as the Settlement of the Duke's Estate as he intended the same .