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<DATE>2014-05-19</DATE>
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<NAME>TCP Staff (Michigan)</NAME>
<RESP>MURP</RESP>
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<ITEM>Proofed and reviewed as part of batch B140317.pdcc.</ITEM>
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<EEBO>
<IDG S="marc" R="UM" ID="B21313">
<STC T="W">D1922</STC>
<STC T="G">L.R.305.a.7.[28]</STC>
<BIBNO T="umi">99894238</BIBNO>
<VID>190491</VID>
</IDG><!-- alt.stc GL.R.305.a.7.[28] -->
<TEXT LANG="eng">
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<DIV1 TYPE="text">
<PB REF="1" MS="y">
<HEAD><LIST>
<ITEM>John Dormer <HI>of</HI> A&s;cot, <HI>E&s;q; Appellant.</HI></ITEM>
<ITEM><HI>Re&s;pon|dents.</HI>
<LIST>
<ITEM><HI>The Hon^a^b^l^e</HI> Charles Bertie <HI>and</HI> Henry Bertie, <HI>E&s;q^r^e^s, </HI></ITEM>
<ITEM><HI>The Children of the Hon^a^b^l^e</HI> Peregrine Bertie, <HI>E&s;q; deceas'd,</HI></ITEM>
<ITEM><HI>And the Children of</HI> Henry Cane, <HI>Sen' Gent. deceas'd, </HI></ITEM>
</LIST></ITEM>
</LIST> </HEAD>
<HEAD>The Re&s;pondents CASE.</HEAD>
<P><HI>RObert Dormer,</HI> E&s;q; (deceas'd) being &s;eized in Fee of a real E&s;tate of near 1700 <HI>l. per Annum;</HI> and, having contracted Debts to the amount of 8000 <HI>l.</HI> beyond the Value of his per&s;onal E&s;tate, made his Will, and thereby devi&s;ed out of the &s;aid real E&s;tate 200 <HI>l. per Annum</HI> apiece in Fee to his &s;ix Brothers of the Half-Blood (the <HI>Dormers</HI> of <HI>Row&s;ham</HI>) to be &s;ettled on them by his Executors at the end of three Years next af|ter his Death.
<NOTE PLACE="marg"><HI>Will</HI> to Novemb. 1693.</NOTE> And gave to each of his Executors Legacies of 5 <HI>l.</HI> a piece to buy them Rings and the like Legacy to the Appellant.
<NOTE PLACE="marg">The very Words.</NOTE> Willed, That all his Debts &s;hould be paid by his Executors: <Q REND="margQuotes">And then gave all the re&s;t and re&s;i|due of his real and per&s;onal E&s;tate to his three Uncles, <HI>Peregrine, Charles</HI> and <HI>Henry Bertie,</HI> and <HI>Henry Cane,</HI> Sen' (whom he appointed Executors of his Will, in Tru&s;t and Confidence that they would &s;ee it performed) equally to be divided between them, Share and Share alike: To have and to hold the &s;ame to them, their Heirs and A&s;&s;igns for ever, or to the Survivors of them, who &s;hould take the Care and Trouble upon them to &s;ee the Will performed.</Q></P>
<P>The&s;e four Executors (now Re&s;pondents) proved the Will and took upon them the Payment of the Debts.
<NOTE PLACE="marg"><HI>Te&s;tator died</HI> 1 Feb. 93. 24 Jan. 1697.</NOTE></P>
<P>The Appellant brought his Bill in <HI>Chancery</HI> for recovery of the whole E&s;tate, &s;ugge&s;ting, That the Will was obtained by fraud and when the Te&s;tator was not <HI>compos mentis;</HI> and in other Parts of his Bill he &s;eemed only to aim at the &s;aid Surplus, on pretence, that 'twas devi&s;ed in tru&s;t for him, and ought to enure to his Benefit as Heir at Law.</P>
<P>The Appellant might and ought to have gone to Hearing upon the Con&s;truction of the Will without any Exami|tion; but, in&s;tead thereof, he took out a Commi&s;&s;ion, and examined many Witne&s;&s;es upon pretence of &s;etting a&s;ide the Will,
<NOTE PLACE="marg">The Appellant was but Cou&s;in-German to the Te&s;tator.</NOTE> which nece&s;&s;itated the Re&s;pondents to examine on their part to &s;upport the Will: And it was fully made appear, That the Te&s;tator had a great Re&s;pect and Value for his &s;aid Executors, (three of whom were his own Uncles) and that the Appellant had quite lo&s;t his Favour.</P>
<P>The Appellant, after the Commi&s;&s;ion executed, moved and got leave to add an Interrogatory, to examine one <HI>Smith</HI> and <HI>Ma&s;on,</HI> as to Mr. <HI>Cane</HI>'s Di&s;cour&s;es touching the Will, and afterwards (without giving due Notice) mo|ved,
<NOTE PLACE="marg">6 Feb. 1698.</NOTE> and by &s;urprize, obtained an Order of 6 <HI>Feb.</HI> 1698. for enlarging the Interrogatory &s;o as to extend it to the Te&s;tator's Di&s;cour&s;es,
<NOTE PLACE="marg">9 Feb. 1698.</NOTE> and to re-examine <HI>Smith</HI> thereto; which la&s;t Order was three Days afterwards di&s;charg'd upon long Debate, the Court being &s;atisfied that no &s;uch Examination or Enquiry ought to be permitted in relation to a Will in Writing, and that <HI>Smith</HI> had been before examined at the Commi&s;&s;ion to that very Matter.</P>
<P>On Hearing the Cau&s;e,
<NOTE PLACE="marg">3 March. 1698.</NOTE> the Appellant in&s;i&s;ting that the Will was not good, the Court directed the Validity thereof to be tried at Law, and that Mr. <HI>Cane,</HI> Sen', who drew the &s;ame, &s;hould be examined on Interroga|tories, for di&s;covery of the Draught and In&s;tructions.</P>
<P>Mr. <HI>Cane</HI> was examined accordingly: After which the Appellant would not proceed to Tryal, but waved the &s;ame,
<NOTE PLACE="marg"><HI>Lord</HI> Somers, 14 June, 1699.</NOTE> and admitted the Will to be good, and 14 <HI>June,</HI> 1699, brought on the Cau&s;e to be Heard as to the pretended Tru&s;t: Whereupon, and upon Reading the Will and Proofs and long Debate, the Court declared they &s;aw no Cau&s;e to give the Appellant any Relief, and therefore Di&s;mi&s;&s;ed his Bill: From which Di&s;mi&s;&s;ion, and al&s;o from the &s;aid Order of 6 <HI>Feb.</HI> Mr. <HI>Dormer</HI> the Heir has Appealed, and prays he may have the Benefit of the &s;aid Surplus claimed by the Re&s;pondents.</P>
<P>But the Re&s;pondents are advi&s;ed, and do in&s;i&s;t that the &s;aid Di&s;mi&s;&s;ion is ju&s;t and equitable; for that the &s;aid Will is &s;o far from Importing or Implying any Tru&s;t for the Appellant, as to any of the Lands thereby devi&s;ed, that there can hardly be found Words that do more expre&s;ly exclude any &s;uch Tru&s;t, Pre&s;umption or Implication as the Appellant aims at.
<NOTE PLACE="marg">Vide, <HI>Act against Frauds;</HI> &amp;c. <HI>in</HI> 1677.</NOTE> And the &s;aid Order of the 6 <HI>Feb.</HI> was ju&s;tly Di&s;charged, for that it is not Con&s;onant to the Laws and Statutes of this Realm, that any Examination or Parol-proof &s;hould be admitted to alter the Con&s;truction of a written Will concerning Lands, and for that it is again&s;t Practice, and would be of dangerous Con&s;equence to all Mens E&s;tates, and a means to introduce Perjury, if Wit|ne&s;&s;es who have been once examined in a Cau&s;e, &s;hould afterwards be permitted to be re-examined to the &s;ame Matters.</P>
<CLOSER><SIGNED><HI>Wherefore the Re&s;pondents pray the &s;aid Appeal may be Di&s;mi&s;&s;ed with Co&s;ts.</HI> HENRY POLEY.</SIGNED></CLOSER>
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