[See Mew's Dig. iii. 2089, xv. 662.]
Appellants made this case: that appellant Elizabeth was daughter and heir of George Lord Willoughby, and niece and sole heir of John Cary, who, her parents Dying in her childhood, took her to his house, bred her tenderly, and always declared her as his heir; but being justly jealous of the growth of popery in the last reign, and fearing she might marry a papist, engaged in a treaty with the late Lord Guilford, (a known protestant) for marrying her to the now Lord Guilford, and both being infants, Cary meant to oblige her to consent to such marriage; and therefore, about a month before he died, altered his will, and devised his estate to Sir William Whitlock, and others in [11] trust, after his debts paid, for his Niece, the appellant Elizabeth, (in case she should within three years after his death be married to the then Lord Guilford, according to the form of the Church of England) for her life, remainder to her sons by said Lord in tail male, and for want of such issue, or in case the marriage should not take effect within said three years, immediately after either of said contingencies, in trust for the late Lord Falkland for life, afterward for his sons successively in tail male, with other remainders over; and made Sir William Whitlock, Roger North, Esquire, uncle to Lord Guilford, and Simon Smyth, Esquires executors, and in about ten days after, by a codicil declared, if such marriage took effect within their ages of consent, it should be as none, unless afterwards ratified; and desired the lady Wiseman, sister to the late, and aunt to the now Lord Guilford, to have the education of her said niece; and died, leaving appellant Elizabeth about twelve years old, Lord Guilford being then somewhat younger.
Elizabeth, immediately on testator's death, according to the will, went to reside with the Lady Wiseman, then Countess of Yarmouth, and in December, 1685, by her trustees preferred her bill to have the Countess take the guardianship, and for a maintenance, and the Countess by her answer accepted the trust; and 26th December, 1685, appellant Elizabeth, in answer to a proposition of marriage sent her by Lord Guilford's trustees, declared under her hand, "I will marry Lord Guilford as soon as ever he comes to his age of consent, or at any time before with the advice of my friends and relations; and I do declare I will marry no other Person whatsoever." And 23d February, 1685, preferred another bill against Lord Guilford, Anthony Lord Viscount Falkland, Edward Cary, Respondent's father, the trustees and executors, stating the will, and declaring she was ready to marry Lord Guilford, and praying that the trust might be executed, and the will in all things performed.
In May, 1686, the Countess refused longer to continue Elizabeth with her, and delivered her up in Chancery; which Court placed her with her grandmother, Mrs. Finnes, and always afterwards directed all things as to her fortune, residence, &c. and in May, 1667, just before Lord Guilford's age of consent, Elizabeth's friends sent [12] some proposals to Lord Guilford's guardians for some maintenance for her out of her own estate from the marriage till they should cohabit, Lord Guilford being young, and about to travel; which proposals were rejected; and thereupon, in July, 1687, application was made to the Court, and the then Chancellor, Lord Jefferies, declared such proposals reasonable, and fit to be insisted on by Elizabeth's trustees, and that no person should persuade her to marry unless such proposals were complied with; which order Lord Guilford's guardians were served with, and acquiesced, and never after renewed any address or application to Elizabeth; and in August, 1687, the Lord Chancellor sent Elizabeth to live with Lady Hickman, at Gainsborough; and added further, that no marriage should be without compliance with said proposals; and under this order she was kept with Lady Hickman till the three years expired; within which time, and for three years and an half longer, she
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