Page:The English Reports v1 1900.pdf/248

himself, and written by one William Hocken (his clerk) in the presence of Richard Fillis, who stood by, which Richard Fillis, before publication of the said will, mentioned to the testator that he had forgotten one of his great grand children, and the testator asking which, Fillis replied, the child in Madam Darrell's womb; meaning Madam Darrell, the wife of his grandson, Henry Darrell, who was then big with child. To which the testator answered, "he thought he had done very well for them already; you must not think I will give to them who are unborn:" And that this declaration was proved by Fillis and Hocken, who were both subscribing witnesses to the will:—and that the child that Madam Darrell went with, was afterwards born, and died. And that the cause had been heard before the Master of the Rolls, upon bill and answer only; and that his honour was mistaken in his [165] decree, because, as respondents contended, the two years after testator's decease was allowed as a reasonable time to get in, and make a distribution of the estate amongst the legatees, and was not inserted or mentioned in the will, with regard to any grand children or great grand children to be born within those two years; and that respondent conceiving such construction of the will disagreeable to the testator's intention, appearing upon the will itself, and also contrary to his express declarations aforementioned, appealed to the Lord Keeper: And that afterwards, by an order made, 8th February, 1699, on hearing council on both sides, the order for rehearing was discharged, and the cause laid open, and plaintiffs to reply to defendants answer, and a commission to issue for examination of witnesses, in which commission the defendants joined, and witnesses were examined accordingly: And that the cause was heard before the Lord Keeper, on pleadings and proofs, and such decree made as stated by appellants; which last decree respondents insisted was conformable to the rules of law and equity, and to the intent of the testator in respect of the words of his will, and his expressions at the time of making it. (H. Poley.)

Die Veneris, 28 Martis, 1701. After hearing council upon this appeal, it was ordered that the same should be dismissed, and the decree complained of affirmed. Lords Journ. vol. xvi. p. 636. (Eq. Ab. 231. Vin. viii. 192. 402.)

The appellant stated that he was Colonel of a regiment of foot, and that, in February, 1695-6, his regiment being in debt for former cloathing, and wanting to be new cloathed, respondent, James Moyer, who was agent to the regiment, and fully acquainted with its circumstances, applied to appellant to be employed to new cloath the regiment for the year 1696; and that appellant and Moyer agreed that appellant should execute a contract to respondent, Cholmley (whose name Moyer used in trust for himself) for the cloathing, and thereupon appellant was to make an assignment upon the army paymaster for the price of the cloathing, to be paid out of the off-reckonings^[1] of the regiment as they should be in course payable, and then appellant was to be no farther liable by the contract: And that in consideration of debts then upon the off-reckonings for cloathing in a former year, and hazard and other inconveniences, and uncertainties of payment, the prices allowed for the cloathing were much higher than they would otherwise have been: And that accordingly, the 10th of February, 1695–6, Moyer brought a contract in writing, as between appellant and respondent, Cholmley, to be executed by appellant, amounting, at the prices agreed upon, to 2331l. 12s. 6d. but appellant being unskilful in the forms, and fearing least upon the contract, as worded, he might be personally charged, in case Moyer should not be paid out of the off-reckonings, desired to advise with counsel thereupon; but Moyer replied, it was