Page:The English Reports v1 1900.pdf/1177

Henry, Duke of Beaufort, in 1657, intermarried with the appellant, who brought him a very large fortune, and with whom he lived in the greatest harmony and affection above forty years. During this period they had several children, only five of whom attained the years of maturity, and were then very plentifully provided for by the Duke in his lifetime; namely, the Lord Marquis of Worcester, the eldest son, on whom the Duke settled an estate of £1500 per ann. and a rent-charge of £500 per ann. besides the family estate in reversion; Lord Arthur Somerset, the youngest son, on whom the Duke settled an estate of £800 per ann.; the Duchess of Ormond, with whom he gave a portion of £12,500; and the Countesses of Suffolk and Coventry, with each of whom he gave a portion of £10,000.

On the 20th of January 1699, the Duke made his will; and after several devises, came the following bequest, viz.

I bequeath the use of my silver-plate for the service of my table; that is to say, of all my silver dishes, trencher plates, with my great silver cistern, with the silver sconces, to my dear wife, during the term of her natural life; and after her decease, I do hereby bequeath all the said silver plate to my grandson, Henry Somerset, commonly called Marquis of Worcester. I do likewise give unto my said grandson, one diamond jewel, which I usually wear in my hat upon St. George's feast; with all my Georges, parliament robes, and my robes of the order, to be laid up and preserved, and delivered to him at such time as my wife shall judge convenient.

And he appointed his wife sole executrix, On the same day, the Duke made a codicil to his will, and thereby gave his wife a rent-charge of £500 per ann. issuing out of his houses called Beaufort Buildings; but he made no disposition of the residue of his personal estate, either by his will or codicil.

Soon afterwards the Duke died, possessed of a personal estate of about £50,000 value, which the Duchess considering as her own property, expended large sums of money in the endowment of several charities, and in other acts of piety and munificence; which she knew was agreeable to the Duke's intentions, and what he would have done himself, if he had lived longer.

No interruption was given to the Duchess in the enjoyment of this personal estate, by any of the family, for about nine years [38] after the Duke's death; but at length in Trinity term 1709, the respondents thought proper to file a bill in Chancery against her, for an account and distribution of the surplus of the Duke's personal estate, as in the case of an intestacy.

On the 24th of February 1709, the cause was heard before the Lord Chancellor Cowper; when his Lordship was pleased to declare, that the late Duke of Beaufort ought to be taken and deemed to have died intestate, as to the surplus of his personal estate, not devised by his will; and that such surplus ought to be distributed according to the acts made for the better settling of intestate's estates; and be decreed an account and distribution thereof accordingly.

From this decree the defendant the Duchess appealed; and on her behalf it was argued (T. Powys, W. Peere Williams), that by the known rule of law, the right to all the testator's personal estate, not otherwise disposed of, belongs to the executor; so that the appellant had most undoubtedly the law in her favour. That the devise of the use of the plate to the appellant for life, which was the only legacy given her