Page:The English Reports v1 1900.pdf/231

Henry Cane, who was proved to have been a designing person, and notorious for making his master, Sir John Borlace's will, whereby he provided for himself 40l. per annum, secured out of the manor of Stratton Audley, besides other legacies to his family; and boasted he could have made whom he pleased co-executors with him of Mr. Dormer's will, though he was an utter stranger to him till within some short time before his death; and when sent for to make Mr. Dormer's will, had 20 guineas reward for his pains; yet knowing testator to be a weak man, and a fit subject for imposition, joined himself with respondents, the Berties, in the trust of the whole estate, thereby to shelter himself in his designs upon the said estate and devised to himself, and co-trustees, a noble seat which cost above 20,000l. building, besides a real estate of 2000l. a year, and a personal estate of about 20,000l. and that after all the trust in the will performed, there would remain a surplus of the real estate of above 8000l. a year, besides timber of great value, together with the ancient family seat, which appellant was intitled to as heir at law, and ought to enjoy but which respondents, the executors and trustees, insisted, by the artificial penning of the will, belonged to them, and ought, with the land, to be equally divided between Cane the bailiff, and his co-trustees the Berties; and that appellant, 11th January, 1697, exhibited his bill in Chancery for relief, and insisted if any such will made, yet testator's personal estate ought to come in aid of his real, and be applied in ease thereof to discharge his debts, legacies, [130] and funeral expences; and that appellant was intitled to the surplus of testator's real estate after the bequests to his six brothers of the half blood, and the other trustees, as a resulting trust for him as heir at law, and particularly to the mansion house of such value as aforesaid; and further, that appellant was, as heir at law, intitled to the profits for the 3 years next after testator's death, of 1200l. per annum, then devised to his said six brothers; for that it could not be reasonably inferred from the will, but that the testator intrusted his executors with his whole estate, merely in trust to see his will performed, which done, the benefit of the trust of what is loft, resulted back to the testator's heirs; and that such appeared to be testator's intention, as well from what testator declared to his brother Charles after the will was executed, as from what Cane, the very penner of the will, declared to respondent Charles, after the will made and published; and further by the will itself particular legacies had been given to the executors, which had been altogether needless, if testator intended them to have had the entire benefit of the surplus of his estate: And that respondents put in their answers, and said Peregrine Bertie and Henry Cane, (both then living) and the said executors, answered this bill, 16th March, 1697, and insisted on the said will, and that they were there-under intitled to the residue of the estate, after the will performed in disherison of appellant; and respondents, the Dormers, insisted on their 200l. a year respectively; and respondent, John Dormer, insisted he was intitled to the 200l. a year bequeathed to said Clement Dormer as his heir at law, inasmuch as said Clement out lived the testator three years, and afterwards died without issue; and that in that cause witnesses were examined on both sides, but through neglect and mismanagement of appellant's agents, one Henry Smith, a material witness for appellant, who could have proved a trust in the executors for appellant, and that testator had well enough gratified Cane for making his will, was not fully examined to that matter, because (as was then apprehended) appellants interrogatories were not full enough for that purpose, and that appellant had therefore, before publication passed, applied to the Court of Chancery for leave to add a new interrogatory to said Smith touching that matter; which on the 6th February, 1698, was ordered accordingly; but that by a subsequent order, 9th Fe-[131]-bruary, that order was discharged, and appellant deprived of the benefit of Smith's testimony; appellant therefore insisted that the order of the 9th of February ought not to have been made, but that Smith's testimony ought to have been taken according to the order of the 6th of February; and appellant further stated, that respondent, Charles Cane, was examined as & witness for his father, and swore that testator expressed himself dissatisfied with appellant's conduct of his own affairs; and that it was proved that testator was always familiar with and kind to appellant, and continually shewed him great favour and respect;