RObert Dormer , Esq ; ( deceas'd ) being seized in Fee of a real Estate of near 1700 l. per Annum ; and , having contracted Debts to the amount of 8000 l. beyond the Value of his personal Estate , made his Will , and thereby devised out of the said real Estate 200 l. per Annum apiece in Fee to his six Brothers of the Half-Blood ( the Dormers of Rowsham ) to be settled on them by his Executors at the end of three Years next after his Death . Will to Novemb . 1693. And gave to each of his Executors Legacies of 5 l. a piece to buy them Rings and the like Legacy to the Appellant . The very Words . Willed , That all his Debts should be paid by his Executors : And then gave all the rest and residue of his real and personal Estate to his three Uncles , Peregrine , Charles and Henry Bertie , and Henry Cane , Sen ' ( whom he appointed Executors of his Will , in Trust and Confidence that they would see it performed ) equally to be divided between them , Share and Share alike : To have and to hold the same to them , their Heirs and Assigns for ever , or to the Survivors of them , who should take the Care and Trouble upon them to see the Will performed .

These four Executors ( now Respondents ) proved the Will and took upon them the Payment of the Debts . Testator died 1 Feb. 93. 24 Jan. 1697.

The Appellant brought his Bill in Chancery for recovery of the whole Estate , suggesting , That the Will was obtained by fraud and when the Testator was not compos mentis ; and in other Parts of his Bill he seemed only to aim at the said Surplus , on pretence , that 't was devised in trust for him , and ought to enure to his Benefit as Heir at Law .

The Appellant might and ought to have gone to Hearing upon the Construction of the Will without any Examition ; but , instead thereof , he took out a Commission , and examined many Witnesses upon pretence of setting aside the Will , The Appellant was but Cousin-German to the Testator . which necessitated the Respondents to examine on their part to support the Will : And it was fully made appear , That the Testator had a great Respect and Value for his said Executors , ( three of whom were his own Uncles ) and that the Appellant had quite lost his Favour .

The Appellant , after the Commission executed , moved and got leave to add an Interrogatory , to examine one Smith and Mason , as to Mr. Cane's Discourses touching the Will , and afterwards ( without giving due Notice ) moved , 6 Feb. 1698. and by surprize , obtained an Order of 6 Feb. 1698. for enlarging the Interrogatory so as to extend it to the Testator's Discourses , 9 Feb. 1698. and to re-examine Smith thereto ; which last Order was three Days afterwards discharg'd upon long Debate , the Court being satisfied that no such Examination or Enquiry ought to be permitted in relation to a Will in Writing , and that Smith had been before examined at the Commission to that very Matter .

On Hearing the Cause , 3 March . 1698. the Appellant insisting that the Will was not good , the Court directed the Validity thereof to be tried at Law , and that Mr. Cane , Sen ' , who drew the same , should be examined on Interrogatories , for discovery of the Draught and Instructions .

Mr. Cane was examined accordingly : After which the Appellant would not proceed to Tryal , but waved the same , Lord Somers , 14 June , 1699. and admitted the Will to be good , and 14 June , 1699 , brought on the Cause to be Heard as to the pretended Trust : Whereupon , and upon Reading the Will and Proofs and long Debate , the Court declared they saw no Cause to give the Appellant any Relief , and therefore Dismissed his Bill : From which Dismission , and also from the said Order of 6 Feb. Mr. Dormer the Heir has Appealed , and prays he may have the Benefit of the said Surplus claimed by the Respondents .

But the Respondents are advised , and do insist that the said Dismission is just and equitable ; for that the said Will is so far from Importing or Implying any Trust for the Appellant , as to any of the Lands thereby devised , that there can hardly be found Words that do more expresly exclude any such Trust , Presumption or Implication as the Appellant aims at . Vide , Act against Frauds ; &c. in 1677. And the said Order of the 6 Feb. was justly Discharged , for that it is not Consonant to the Laws and Statutes of this Realm , that any Examination or Parol-proof should be admitted to alter the Construction of a written Will concerning Lands , and for that it is against Practice , and would be of dangerous Consequence to all Mens Estates , and a means to introduce Perjury , if Witnesses who have been once examined in a Cause , should afterwards be permitted to be re-examined to the same Matters .