Page:The English Reports v1 1900.pdf/353

Edward's debts; and that appellant Wilson had notice of the will, and that he and his father agreed Cullin should be subject to the debts, and prayed an injunction to be quieted in Cullin, and to stop appellants proceedings at law for the recovery of Bilbo and Colenemony; and that appellants, in their answer to this bill, denied John was an idiot, or that Gamaliel ever made such articles, or ever received the marriage-portion; and sayed that Gamaliel had made a settle-[384]-ment precedent to the pretended articles, under which his widow, who outlived both her sons, enjoyed Bilbo and Colenemony as jointure until her death; and that Edward deceived his eldest brother John, and denied Edward made a will, or if he did, insisted he had nothing to devise, and denied respondent was at any expence in managing the estate, but held Cullin, as guardian to appellant Margaret; and that appellants were no parties to any agreement made with respondent Story, and said they had recovered a moiety of Bilbo and Colenemony, upon a full and fair trial at law, as heirs to John and Gamaliel; and appellants shewed that that cause was heard 27th April, 1705, and though the pretended articles were all Edward's hand, and no subscribing witness to them, nor were ever delivered or heard of till this suit, and differed materially from those set forth in the bill, and no covenant to convey any estate of inheritance but for life only; and though it appeared Gamaliel had made a settlement prior to these articles, and that Edward burnt it; and though the witnesses produced on respondents part, were excepted to as executors, legatees and creditors of Edward, and so interested, or else were persons of bad characters, and contradicted themselves and one another strangely in their depositions; yet, on the 8th May, 1705, the Lord Chancellor decreed a perpetual injunction to stop appellants proceedings at law on their said ejectment, and that decree was signed and inrolled; and appellants insisted this decree was erroneous and unjust, and ought to be reversed, because the decree was founded on the articles of which there was no manner of proof but the similitude of Gamaliel's hand, no subscribing witness, no proof of delivery, no 'counterpart signed by Sir Thomas, and which article varied materially from those set forth in the bill; and in as much as the reality of the articles was contested, it was the right of appellants, and the constant course of equity to leave the same, being matter of fact, to be tried by a jury; and further, because, though the articles had been duly made, they were not sufficient to pass the inheritance to Edward, no estate being therein agreed to be limited to his heirs; and further again, because it being proved that Gamaliel had made a settlement prior to these articles, and that the same was burnt by Edward, the articles ought to have been adjudged invalid in a Court of equity; and because appellants [385] and respondents being co-heirs as well to Edward as Gamaliel and John, and neither of them being purchasers, they stood in equal degree in equity, and a court of equity ought not to disinherit either, or prefer one to the other; and because Edward's will was never published, nor proof made of it, but by the similitude of his hand-writing, which was not sufficient to decree upon to the disherison of an heir, without a trial at law; and the rather, because, unless Edward had the fee-simple under the articles, his last will (though real) could be of no effect; and further, because the depositions of all Edward's said pretended executors were read, though it appeared they were legatees and creditors, and in danger of losing their debts and legacies, unless the articles and Edward's will were established, which was contrary to natural justice, and the course of all courts of law and equity; and finally, because a perpetual injunction to bind an inheritance, and to establish a disherison upon one of the co-heirs for ever, ought not to have been granted upon any doubtful matter, or without, at least, a trial at law, especially in a case where the same co-heir had before prevailed at law, and obtained a verdict in affirmance of her title. (Matt. Lant.)

The respondents shewed, in affirmance of the decree, that John, the eldest son, was a man of very weak understanding, and Edward the hopes of his family; and that Gamaliel, the father, in consideration of a marriage between Edward and Alice, daughter to Sir Thomas Osborne, and of fourteen hundred pounds portion, agreed with Sir Thomas by articles under hand and seal, dated 28th January, 1680, to settle a jointure of 300l. per ann. on Alice, and 300l. per ann. for their present maintenance; and after his own decease, to settle on Edward all his estate real and personal (except Burnederick, worth 30l. per ann. which he intended for John for