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hold, copyhold, and leasehold, he devised the same to the respondent Thomas Lord Pelham (who was his sister's son) for bis life; remainder [461] to his first and other sons in tail male successively; remainder to the respondent Henry Pelham, another of his sister's sons, for his life; and then to his first and other sons in tail male successively; with other remainders over: provided, that whoever should enjoy his estate by virtue of his said will, should take upon him the name of Holles. And, in case the testator's personal estate should not prove sufficient to pay his debts, legacies, and funeral charges, he subjected his real estate to make good the same. The testator then gave to his wife all her own and his jewels, absolutely, and the use of his gold and silver plate for her life; and, after her death, he directed this plate to go, with his real estate, to the respondent Thomas Lord Pelham, and the several other persons in remainder, as an heir-loom; and, as to the surplus of his personal estate, if any, he gave the same to his said wife; and appointed her and Thomas Lord Pelham, the respondent's father, and Henry Lord Paget, executors.

On the 15th of July 1711, Duke John died; but having after the making of his will and before his death, laid out about £100,000 in the purchase of lands, such new purchased lands descended to the Lady Henrietta, as his only child and heir at law.

After the Duke's death, the appellant thought proper to conceal his will, possess herself of all his deeds and writings, and particularly the settlement of January 1693, and to enter upon and possess all his real and personal estate; whereupon she was cited into the Prerogative Court of Canterbury, to bring in the will of Duke John to be there proved; and after great delay and litigation, she at length produced it, and several witnesses were there examined, to the due execution thereof.

In Michaelmas term 1711, the respondents Lord Pelham and his brother exhibited their bill in Chancery, against the appellant and the other executors, and also against the Lady Henrietta, as the testator's heir at law; to discover the said will, and the settlement of the Cavendish estate; to perpetuate the testimony of the witnesses to both of them; to remove all impediments, which might prevent the trying the validity of the will at law; for an account of the testator's personal estate, and that it might be applied in satisfaction of his debts, legacies, and funeral charges, in exoneration of his real estate; and to have the plate secured, so as to go along with the real estate, according to the will.

To this bill the defendant, the Duchess, put in a plea, answer, and demurrer; and, as to such part of the bill as sought a discovery of any deeds, relating to the Cavendish estate, and particularly the conveyance, leading the uses of the fine and recoveries thereof, after her marriage with Duke John; she pleaded, that Duke Henry, her father, by his will, dated the 26th of May 1691, devised that estate to his wife for life, and then to the defendant and the heirs of her body; and [462] strictly charged that such of her issue, on whom she should settle the same (which he willed should be only one, that his estate might remain entire), should take the sirname of Cavendish; with other remainders over: and that Duke Henry afterwards, by lease and release, dated the 20th and 21st of June 1691, in consideration of natural love and affection, settled all the said Cavendish estate, to the use of himself for life, and then to the use of the defendant in fee; he or she, upon whom the inheritance of the premises should descend or come under the defendant, taking the sirname of Cavendish and, that after Duke Henry's death, a bill was, in Hilary term 1691, brought by the Earl of Thanet and the Lady Catherine his wife, who was one of the four daughters and co-heirs of Duke Henry, against Duke John and the defendant, his then wife, to impeach the will and settlement of Duke Henry; but that such bill was dismissed.

On the 10th of March 1711, this plea was argued before the Lord Keeper Harcourt, assisted by the Lord Chief Justice of the Common Pleas, and Mr. Justice Tracy, and was overruled.

In consequence whereof, the Duchess put in a further answer; and, after insisting upon the several matters which she had pleaded, relative to the Cavendish estate, she set forth, that by indenture, dated the 17th of January 1693, executed by Duke John and herself, before they had any issue between them, therein reciting several mortgages and incumbrances affecting the said Cavendish estate, which had been purchased and taken in by Duke John, and were kept on foot in trust for him, it was agreed, that a fine should be levied by Duke John and the defendant, of such part