Life; and after his Decease, to sell the same for the best Price, and out of the Money raised by Sale, to defray the Funeral Expences, and pay his Debts, and deliver the Surplus, as he should (by his last Will and Testament in Writing, attested by three Witnesses, or by another Deed in Writing so attested) appoint; and for want thereof to the Executors and Administrators of the Earl; with a Proviso, That the said Earl, by his last Will and Testament, or any other Deed in Writing (to be thereafter by him made and executed and attested as aforesaid) might alter, change, determine, or make void all or any the Trusts aforesaid; and for want of such after to be made Will or Deed, then in Trust for the said Earl Edward, his Heirs and Assigns for ever. Earl Edward died without Issue of his Body, and without Marriage.
The Appellant exhibited a Bill to have the said Deeds of Lease and Release set aside, and to have the Will executed. The Respondents, as Heirs, insist upon the Deeds as a Revocation; and their Heirship was thus: Theophilus Earl had Issue Edward, Katharine, Arabella and Margaret; Edward died in the Life-time of Theophilus, leaving Issue Edward late Earl of Lincoln; Katharine, by Sir George Booth, had Issue the Respondent Veer Booth; Arabella, by Robert Roll, had Issue Samuel Roll; and Margaret married Hugh Boscowen, and had Issue the Respondent Bridget Fortescue. And the Court, assisted with the two Chief Justices and Mr. Justice Powel, saw no Cause to relieve the Appellant.
Argument for the Appellant.—And now it was argued with the Appeal, That the Dismission was Erroneous, there being Cause for Relief: For that the Marriage never did take effect, nor any serious Overture or Treaty was made by the said Earl on that behalf; so as the said Earl did continue, and at the Time of his Death was seised of the same Estate in the Premisses he had at the Time of making and publishing the Will. That if at Law the Deeds of Lease and Release were in Strictness a Revocation of the Will, yet in Equity they ought not to be construed a Revocation of the said Will, so often and so solemnly and deliberately made and published, and upon so good a Consideration as the Support of the Honour. That the said Will was the Result of the Earl's continued Intentions throughout his Life, and the Deeds were only the Effect of some sudden Fancy or Passion; and even by those Deeds no Benefit was designed to the Respondents; for the Disposition of the Surplus of what [156] should be raised by the Sale, was to be to his Executor Sir F. C. the Appellant's Father: And that did evidence a continued Kindness to him, who never had offended him, and no Regard to the Respondents, who (tho' they were his Heirs general) were related only at a Distance, and scarcely known by him; and very well provided for by great Portions raised out of the Estate for their Mothers.
1 Chan. Rep. 42. Then 'twas argued, that this Estate was merely an equitable one; and consequently Equity only ought to govern the Disposition of it. Here's no express Revocation pretended: That a Mortgage in Fee is no Revocation, for in Equity it doth not make the Estate another's. Here is a noble Peer, who is to sit in the Seat or Place of his Ancestors, and therefore no Presumption, Intendment or forced Implication ought to be against him or his Interest. That this was designed to take effect, in case the Marriage was had, and not otherwise: That here was no Intention to revoke, but upon the Contingency of his Marriage. And there was cited Zouch and Barker's Case 1625. in the Lord Coventry's time, Chan. Rep. and the Lord Boucher's Case in Edward the Sixth's Time; the Case was said to be in Dyer, left as a Quære, and in 1 Roll's Abridg. And for these and many other Reasons and Authorities urged, 'twas prayed that the Dismission should be Reversed and the Appellant relieved.
Argument for the the Respondents.—On the other Side 'twas insisted, That tho' this was not an express Revocation by the Use of Words declaring it to be such, yet 'twas a true, legal, and effectual Revocation; that these Deeds of Lease and Release did alter the Estate; that here 'twas for Payment of Debts, as well as in Consideration of the intended Marriage; that here was a manifest Change of his Intention; that both Will and Deed were voluntary and inconsistent, and therefore the latter must stand; that here were no Children or Creditors claiming under the Will; that tho' the subject Matter were an equitable Interest, yet Equity ought to follow the Rules of Law; that the Law made this a good Revocation,
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