Page:The English Reports v1 1900.pdf/1309

should be at his decease in Blenheim-house; the same trusts to be revocable and to be revoked, in such manner as the trust before limited of the said household goods and furniture at Blenheim-house, were made revocable and directed to be revoked. And after giving other annuities and several pecuniary legacies, the testator bequeathed all the residue of his personal estate, not before disposed of, (his debts and funeral charges being first paid), to his said trustees, in trust to lay out the same entirely, or by parts, in the purchasing manors, lands, and hereditaments in fee simple in England, with the approbation of his wife, the Countess Godolphin, and Lord Ryalton [239], or of the survivors or survivor; and after the decease of the survivor, at the discretion of the trustees, with the approbation of the Duke or Duchess of Marlborough for the time being, to be settled and secured to the several uses, trusts, intents, and purposes, and by and under all and every the limitations, powers of revocation, other powers, conditions, restrictions, and agreements therein before limited, directed, and appointed, of and concerning his real estate before devised to his said trustees, to the use of the Countess Godolphin for life, with remainders over, subject to and charged with the annuities, legacies, and appointments therein mentioned.

After the preceding limitations and restrictions, the testator proceeds with the following clause; viz.

And I do hereby intreat his most sacred Majesty, the Lords spiritual and temporal, and Commons, in parliament assembled, or to be assembled, that an act of parliament may be had and obtained for settling my real estate, herein before devised, or to be purchased with my personal estate, in pursuance of this my will, and also my goods which shall be in Blenheim-house and Marlborough-house at the time of my decease, to such uses, and according to my intentions expressed herein, and that the same be unalienable, as the honour and manor of Woodstock and house of Blenheim are made, by the said recited act of parliament, of the 5th year of her said late Majesty; and I do hereby direct my said trustees, and the survivors and survivor of them, and the executors and administrators of such survivor, in humble manner to apply for obtaining such act of parliament for the purposes aforesaid.

He then appointed his Duchess, and the Dukes of Montagu and Bridgewater, and the respondent the Earl Godolphin, together with Clayton, Guidott, and Hanbury, his executors.

On the 16th of June 1722, the testator died, without having any daughter born after his will, and without issue male; and all the executors proved the will, except the Dukes of Montagu and Bridgewater.

Harriot Countess of Godolphin, Lord Ryalton, and Lord Robert Spencer, named in the will, all died without issue male; and on the decease of the Countess, then Duchess of Marlborough, (who survived her son and Lord Spencer,) on the 24th of October 1733, Charles Spencer named in the will, father of the respondent the Duke of Marlborough, became seised for life of the estates limited by the will, and purchased with part of the personal estate, and entitled to the yearly produce of the residuary personal estate not invested in purchases; and in compliance with the condition in the will, he by lease and release, dated the 11th and 12th of January 1733, and by fine, conveyed all the estates which, by the indenture of the 29th of October 1699, were settled upon the sons of the said Charles Earl of Sunderland, by Ann Countess of Sunderland his wife, successively in remainder in tail [240] male, to the use of his brother John Spencer, and the heirs male of his body.

Several sums of money, part of the testator's personal estate, were after his death laid out by his trustees in the purchase of estates, in the several counties of Wilts, Oxford, Bedford, Bucks, and Lincoln, and elsewhere, of a great yearly value; which, as they were purchased, were conveyed to the trustees and their heirs, upon the trusts in the will generally.

In Trinity term 1738, a bill was exhibited in the Court of Chancery, in the names of Sarah Duchess of Marlborough, the respondent Francis Earl Godolphin, and William Clayton, then Lord Sundon, the then surviving acting executors and trustees, against Charles then Duke of Marlborough, and his son George then Marquis of Blandford, and also against the said John Spencer father of the appellant Lord Viscount Spencer, and against his Lordship and others; praying that such of the trusts of the will as had been performed, and such purchases as had been made with the trust estate, might be approved; and that such of the trusts as remained unperformed might be carried into execution, under the direction of the Court, and that all proper accounts might be taken