THE CASE OF Elizabeth Duchess of Albemarle, and Christopher Monk Esquire, Appellants. AGAINST John, Earl of Bath, and others Respondents  
THE Appellants Bill in the Chancery sought to be relieved against two Deeds of Lease and Release mentioned, 
The proceed in Chancery, and state of the Case.  to bear Date the 15 and 16th of July 1681: And that the Estate Real and Personal of Christopher, late Duke of Albemarle, might go according to his Grace's last Will, Dated the 4th of July 1687. And to have an Execution of the several Trusts in the said Will.  
And the said Earl insisted on a Will of the 23d of August 1675, and on the said Deeds as well executed and duly obtained, and sought thereby wholly to avoid, and render ineffectual the said Last Will, tho' the same was most solemnly-made and intended by the said Duke to be the complete and entire Settlement of all his Estate as herein after is mentioned.  
The Court on the 8th July 1681, 
First Decree. The Will of 1689, confirmed as to the personal Estate and a Decree for Account accordingly.  after four days Debate Decreed the Duchess to have her Specific Legacies, and the personal Estate to be accounted to Mr. Monk, and otherwise to be applied according to the Will of 1687. Which Decree for the Personal Estate has never since been questioned. And the said Will of 1687, had also, before been solemnly sentenced to be a Good Will, and that the Duke intended the same so to be, by the Court of Delegates. But as to the real Estate, before any further direction to be given touching the same, the Court did think fit, and so order, That a Trial at Law should be had touching the said Deeds of Lease and Release, in such manner as in the said Order is mentioned: and after the said parties were to resort back to the Court, for their further direction.  
A Trial was accordingly had, 
Trial at Law, and the Cause again heard.  and there happened to to be a Verdict for the Defendants, and afterwards the Cause being several days again debated, before the Lords Commissioners, they took further time to consider thereof. But before they made any final Decree, that Commission was superseded. And the said Cause coming to be further heard before the Lord Keeper, several matters were insisted upon, whereby in Equity, to establish the said Will of 1687, as the entire Settlement of the said Duke's Estate, notwithstanding the said Deed. His Lordship on the 22d of December last, pronounced a Decree therein, 
Second Error.  to this effect. That as to the Appellants, several Claims and Demands to the real Estate of the said Duke under the Will of 1687, against the Deed of 1681, their said Bill, should be dismissed, and did not Relieve the Appellants, as with humble Submission ought to have been done. And therefore they have brought this Appeal, wherein the General question is, Whether the Deeds of 16 July 1681, or the Will of the 4 July 1687 in Equity be construed to be the true Settlement of the Duke's Estate.  
Observ. 1st. That in this Decretal Order, as now entered, of all the matters offered and debated in Court, after four days were spent herein, there is not any one particularreason given for the Judgement of the Court, as is usual in Cases of so great consequence: But only in general, That the Court saw no Cause in Equity to Relieve  
2dly. That the Lord Keeper and Judges did lay great stress on the Verdict, and that there had been no motion for a new Trial And that so the Deeds must be now supposed to be taken as good Deeds: Which 'tis humbly hoped will not now be of weight; For there was nothing insisted on at the Trial but the Fact only. And so the Verdict is or aught to be of no further Evidence, than that the Duke sealed the Deed. And there was no motion for a new Trial: Not because the Appellants were satisfied with that Verdict, or had, as they conceived, any reason so to be. But because it was and is conceived, That supposing the Duke did Execute such Deeds, there are matters in Equity arising out of the Deeds themselves, and otherwise relating thereto, sufficient to set the same aside, or render the same ineffectual. First, Either as unduly obtained, Secondly, Or as unduly secreted and concealed from the Duke. Or Thirdly, as in Equity revoked by the last Will of 1687. Or Fourthly, as a Trust resulting for the Duke, whereby this his last Will of 1687, may have its full effect, and operation. But before these Points are severally considered, it is necessary to see what the Will and Deeds are; and under what circumstances they stand,  
And were the Fact, the direct question at present, it would be remembered and is proved: 
Some of the Evidence as to the Fact of the Deed.  That when the Deeds were first produced by the Earl, they were read by his Lordship's own Counsel, to be dated, the Lease the 15 July 1681, and the Release the 16 July 1682, at which great notice was taken, and with much difficulty Mr. Bowes and Mr. Buttler got the Earle's leave to look on the same, and observed the Lease to be 1682, as the same had been read, and with those two Witnesses concur, the Lord Cheney Mr. Cheney, and Dr. Barwick, and thereof Mr. Bowes, and by Lord Cheney 's direction, Mr. Cheney then entered several Memorandums in writing: And on sight of the Deed of Release, there appears now a plain Razure, both in the Year of the King, and in the Year of our Lord but in no other word throughout the whole Deed, for aught appeared.  
Now the difference was very material, not only because if the Release were 1682 (as these five Gentlemen say it was), it would not only be void at Law (the Lease being determined) but Sir William Jones, whose name is Endorsed as a Witness, was dead in July 1682.  
As also, That it now appears to have been Engrossed at the Earls House, at St. James 's, and by his direction, by one Thompson, who hath been the Earls Scrivener for these thirty Years. Whereas the Earl by his Answer says, he knows not who Engrossed it: But it being of great moment and secrecy, was all committed to the Care and Conduct of Sir William Jones.  
And also, that Thompson on his first Examination swore, That in 1687 he Ingrossed for the said Earl a Deed of the same purport, as this, (whereas this Deed is dated 1681) and remembers not that ever he Engrossed any other. But when he is afterwards produced by the Earl, than there is shown to him a Parchment prepared to be, but never Executed by the Dake. And this he says, is what he Engrossed for the Earl in 1687, (as is said, prepared in 1687) both as to the Power of Revocation, and every thing else is the same in words with the Deed of 1681, saving only the last Covenant not to revoke the Will of 1675 And Thompson says, he thought it had been Executed in 1687, and this done without the Duke's directions, or any occasion for the same: for if the Duke had before Executed the other, and had it in his Custody, (as is said by the Earl in his Answer) what need was there thereof?  
As also, That after July 1681. the Earl was advising with my Lord Precedent how he might procure a Settlement from the Duke.  
As also, That the Seal of the Duke's Coat of Arms, which is upon this Deed, was cut by Mr. East, for the Earl of Bath, and the Earl paid him for that 3 l. 10 s. and also for another small Seal of his own Arms at the same time. And the said Mr. East still hath the impression of both Seals, which he kept in soft Wax.  
As also, How many Witnesses, well acquainted with the Handwriting of the Duke, and Sir William Jones, and Sir John Coppleston, have sworn, they do not believe these to be so. With other Evidence offered on that Subject, of the Fact.  
But more immediately towards the Points of Equity, it is to be considered,  That the Will of 1687. 
Contents of the Will of 4 July 1687.  contains a fair, complete, and honourable Settlement of all the Real and Personal Estate; some part to the Duchess for Life, some part to his Friends and Relations, and Legacies to others of them, and particularly to Bevil Greenvill, younger Son of the Earl of Bath, Lands worth 30000 l. and to Sir Walter Clargis, after the death of the Duchess, Lands, to the value of 1500 l. per annum, or thereabouts. It devices a Monument not exceeding 5000 l. to be erected for himself, his Father, and his Mother; and devises Almshouses to be built, and a Charity of 200 l. per annum to Twenty poor Widows, pursuant to the intention of his Mother, and provides well for the payment of his Debts, and leaves the inheritance of the greatest part of his Estate to his Cousin Col. Tho. Monk, and his Sons in Tail-Male, with Remainder to his Cousin Col. Henry Monk in Ireland and his Sons, with other Remainders over; and contains his humble Request to His Majesty, in memory of his Father, and his own Services, to create the said Col. Tho. Monk (the Appellant Monk's Father) Baron Monk of Potheridge, and to the Heirs Males of his Body; so that the Name of Monk, and his Estate, may to Posterity remain together. 
And because the Earl, by his Answer, has made his Case, and accordingly the Court have seemed to take it highly reflecting on the Duke's Honour, That the Duke, at the very time of making the Will of 1687. intended the same should be void, and signify nothing, and the Deed stand, and that the Duke sent him to Counsel, to advise, Whether the Deed could be avoided by a Will? and he told him, It would not: Wherewith the Duke seemed well pleased. It is therefore to be seen what Steps the Duke made about it; and the whole may be put upon that issue, Whether the Duke in this Case was guilty of so much Folly, Prevarication, and Dissimulation towards GOD and the King, his Wife and Relations, when he had no sort of Benefit or Temptation upon him so to do; as not really to intent that to be effectually his Will which cost him so much care and pains, and which was so solemnly perfected, as will appear.  
The Proofs of the Sincerity of his Intentions, 
Prooss of the Sincerity of the said Duke's Intentions, by the last Will of 87. some of them precedent, some of them concomitant, and others subsequent.  and the Freedom of his Mind, are some of them precedent to the Will, some of them concomitant, and others of them subsequent.  
Sir Henry Bellasis and Sir Robert Clayton swear the Duke's declaring his Intentions precedent before the Will prepared, who he intended to give Col. Monk in Holland the best part of the Estate, and how he intended to settle the same. And Sir Robert Clayton, That the Duke sent him for the Lord Chief-Justice Pollexfen to draw it; and in order thereto, sent to the Earl of Bath for a former Will of his he had made: Which accordingly the Earl of Bath confesseth he gave him in December 1686.  
The L. Chief-Justice Pollexfen swears, He went with Sir Robert Clayton, and drew the Will, by Directions and Instructions from the Duke's own Mouth, and was often with him about it, and that several Alterations were by the Duke's Order made in it, and that the Matter was long transacting and settling, and that he never saw any man more earnest to have his Will well done, and according to his mind; and when he had finished the Draught, he read it to the Duke, and after some amendments again thereupon made by the Duke's directions, he was desired by his Grace to get his Clerk to engross it, leaving blanks for the Executors Names; and the Duke desired him to be one of his Executors, to which he consented; and, that Sir Thomas Stringer was some of the times present with the Duke and him about it. That it was published at Sir Robert Clayton's, after the Duke had there Executed the Deeds of the Manors of Dalby and Broughton to Lord Jefferies, in the presence of Three Witnesses, and of Sir Tho. Stringer, who did not subscribe, because he was one of the Executors. And for the greater solemnity, the Duke hath to Three several parts, each containing 19 sheets of Paper, and to every sheet of each part subscribed his Name, and affixed his Seal, and caused the Witnesses likewise to subscribe their Names to each sheet, and afterwards sealed them under three several Covers, and endorsed on all the Covers, with his own Hand, these words, My Will, the 4th July, 1687. He kept them all in his own custody till his going to Jamaica, and then delivered one of them to the Lady Eliz. Pierpoint, to be given to the Duchess of Newcastle; another of them he gave to the said Col. Monk, whom he had sent for from Holland for that purpose, and writ to his present Majesty, than Prince, to procure him Leave to come, and did treat him, his Wife and Son, with Lodgings and Diet in Newcastle-House, with himself, and made him a Present of 3●0 l. for his Expenses in coming over. The third part thereof he carried with him to Jamaica, where about a fortnight before his Death he re-published the same, and kept it in his strong Box, amongst things of the greatest value to him, and directed the Keys thereof to be given to his Wife, in case he relapsed and there died  
Besides all these Solemnities, 
Letters between the L. of Bath, the Duke, and the trusties, about Monk, in confirmation of his Last Will.  and the great care and concern of the Duke, in his said Will, for his Kinsman Col. Monk; when afterwards the Duke in Jamaica heard of the death of the said Col. Monk, he put himself and Family into Mourning. And not only the Duke, but also the Earl of Bath, Sir Walter Cla●gis, Sir Tho. Stringer, and the rest of the Duke's trusties, looked on the Appellant Christopher Monk, eldest Son of the said Colonel, as the person who would have the Duke's Estate in case of his death: Which appears by Letters even under the Earl of Bath 's and others of the trusties Hands, recommending it to the Duke, on the death of Col. Monk; That since his Grace had thought fit to promote that Branch of his Family (how remote soever) into so great a share of his Favour, there should be something done towards the breeding up the Children, to make them appear in the World answerable to that figure which his Grace had designed they should one day make in it. Such is the one of the Letters signed by the Earl of Bath. And divers other Letters there are to the same effect, as also from the Duke, in Answer, directing, That the Earl of Bath and trusties should forthwith send into Holland for the Appellant Christopher, and that Care be taken of him, to have him well educated; That he may (as the words of the Letter go) receive such improvement as is proper for what I have already designed him; and therefore think it convenient, that he be put under the Tuition of Mons. Faubert; and that particular Care be taken to see it done, and give me an Account, from time to time, how he proceeds in his Studies. And accordingly the trusties, and particularly the Earl of Bath, who took upon him the greatest Trouble thereof, agreed for him, and a Servant with him, to be at Monsieur Faubert's, at above 200 l. per annum Expense; and the Earl of Bath often visited him there. Whereas if this Will of 1687. be not the Real Will and Setlement of the said Duke, (but that the Deed of 1681. should stand) there's nothing at all given to the Appellant Mr. Monk, to make a Figure, or bear any Character, as the Letters go.  
The Earl of Bath, by his Answer, 
The Earl's Answer about Faubert's.  goes to explain all this, and says, That Faubert's was the place where the Duke used to breed his Pages to Fencing and Riding; and has also proved it by a Witness; but he hath not showed, That such Expressions as are in the Letters were usual with the Duke or himself, in relation to the Pages, viz. What Figures they were to make, and what Characters they were to bear one day in the World, and how many Pages the Duke did breed with a Servant at such expense, and how many Visits the Earl did ever make the Pages, as he used to do Mr. Monk, and how many of the Pages were to proceed in their Studies there as the Duke directsr Mr. Monk should do.  
And as to the pretended Importunities of the Duchess to obtain the Last Will, it is fully answered.  
The Duke and Duchess always lived well together; 
Duchess' pretended Importunities answered.  neither was it her Interest in any sort to set up Mr. Monk, for Col. Monk was much a Stranger, in comparison of the Earl of Bath, who tells by his Answer how many ways he had obliged her. Besides, this Deed (if Dalby and Broughton had not been since sold) settles very near as much Land on her as the Last Will.  
And the Lord Ch. Just. Pollexfen swears, he used to be with the Duke in the mornings, and that he acted, freely and was in a very fit condition to make a Will.  
And Mr. Bowes swears he recommended it to the Duke, instead of the use of the Goods for Life, to give her the property of them, and that he refused. As also, denied to give her the Inheritance of that which had been her Father's Estate at Grindon, which shows the litlte influence she had: And likewise that the Duke expelled the Will to be good. But yet his esteem for her appears in that, in the Will produced by the Earl of Bath, and in a Will of 1673, and in all his Wills, he named her sole Guardian of all his Children, if he had any.  
And it is further here to be considered, That the Duke had too much Courage to do any thing through fear, or importunity; and more Honour than so to dissemble either with the Earl, or Colonel Monk: but the natural construction which saves the Duke's Honour, is, That in 1675 he might intent some part of his Estate to the Earl of Bath. But in 1687, when Colonel Monk 's great credit in the Army had more endeared him to the Duke, and he had hopeful Sons, and the Eldest Son his Godson, and the Duke as by the Will is expressed, desiring that the great part of his Estate should continue in his own name, really intended it for Mr Monk and his Sons, etc. and yet was bountiful also to the Earl of Bath 's Son, as aforesaid, and he might well in so many years alter his intention. And as to the Deed in 1681.  
Now that this Deed must have some way by Surprise, 
Surprixe in Reference to the Deed of 1681.  or other undue means, have been imposed upon the Duke, appears by the circumstances that attend it, and from the face of the Deed itself: There's not the least proof offered, that the Duke ever gave any directions for it, or read, or heard one word of it read; nor that ever there was any Copy or Counterpart. And upon reading thereof, it appears in very unusual manner and expressions, to labour extremely to make a show of a Consideration.  
And then for the Substance thereof, It is absolutely inconsistent with itself. It recites a Will of the 23d of August 1675 (which the Earl of Bath says, is the Will the Duke took from him in 1686): and it misrecites several things of it; Then it says, it is intended thereby to Corroborate and Confirm the Will, and yet entirely revokes and contradicts it, and limits the Estate to different uses, except only the Manor of Midgham and Tile-Mills, which only are to the same uses: But then this Devise, in which they only agree, is written on the Margin of the Will, in the Earl of Bath 's own Hand: but by what Order or Authority from the Duke doth not appear.  
And here it is also to be noted, That the Devise to the Earl of Bath and his Heirs, is on the sixth Sheet of this Will of 1675, and that this sixth Sheet of this Will is of a different Paper, different Handwriting, and a different Seal from all the rest of the Sheets of the Will.  
The Will of 1675, 
Further instances of Surprise.  gave all the Duke's Estate to his own Daughters in case he had any, before the Earl, or his Sons or Daughters, as good reason there was. But the Deed of 1681 limits the Estate in Essex and Lancashire, etc. to the amount of 5000 l. a Year, so as the same would go to the Earl of Bath and his Daughters before the Dukes own Daughters. Which seemed not Answered, in saying that the Duke might expect the Earl would be created Duke of Albemarle, and do it for his support, but certainly the Earl's Daughters were not to be Dukes, and yet they would by the Deed carry the Estate from the Duke's Daughters.  
Part of the occasion of making the Deed, the Earl says by his Plead, was to make Provision for younger Sons, in which his Marriage-Settlement was defective. And yet, the Lands settled by this Deed of 1681, for such Younger Sons are Redrisse, Norton, Disney, etc. which by the Marriage-Settlement were settled on the Duke's  Son.  
Then the extraordinary nature of the Power of Revocation, That it must be done in the presence of six Witnesses, and three of them Peers, whereby the Duke put himself under great incapacities; some times it might be impossible for him to get three Peers, as it was in Jamaica; And if he had them, he was in their power whether they would be Witnesses or no. And thereafter comes the Covenant, not to Revoke or alter the Will of 1675, which by that Deed was actually Revoked, as aforesaid.  
Nor had the Duke himself any power by the Deed to make Leases: and yet all this must be kept from the knowledge of the Duke, and so he knew not how exactly to pursue it.  
But the Earl Bath by his Answer, 
The Earl of Bath's Answer about the Engrossing the Deed, and Sir W. Jones.  to give the greater credit to the Deed, says, That he knows not who Engrossed it, but it was committed all to the Care and Conduct of Sir William Jones, and he came to be a Witness to it, at Albemarle- House, and believes Sir William Jones read it to him before it came to be perfected, and that the Duke was often with him about it, after the time that Sir Tho. Stringer had prepared the Draught, but was not to be trusted with the knowledge of the Execution of it.  
Now when the Court observed the strange frame of the Deed, and the many Inconsistencies, Improprieties, and Conitradctions therein. They declared, That they did not believe that ever Sir William Jones drew the said Deed, only was consulted upon the Proviso, which seems not to consist with the Earls Answer, which says, that the Care and Conduct of the wholewas committed to Sir W. Jones. And it now fully appears, That Sir William Jones has no hand in the Engrossing thereof; but it was done by Thompson at the Earls House, as aforesaid.  
And the great Secrecy, not only in the obtaining, 
Concealment.  but concealing thereof appears, in that it must not be known to the Duke of Newcastle, or any of the trusties therein; nor to Sir Walter Clarges, who has an Estate thereby, and was the Duke's intimate Friend and near Relation; nor to Sir Thomas Stringer, who, it is said, drew the Draught. But yet the Earl's Answer confesseth he was not to know of the Execution thereof, lest he should tell the Duchess, though she hath so great an Estate thereby, that it was her interest to espouse it, and thank the Earl for his great kindness expressed in his Answer, by prevailing with the Duke to make her Estate thereby so much better than it was before.  
Then that the Duke with the privity of the Earl of Bath, sold Dalby and Broughton to the Lord Jefferys, as also Bitchfield before, without the least notice either by the Duke, or the Earl of any such Deed: And made many Leases without fines, which he had thereby no power given him to do. And also made divers voluntary Conveyances, and Grants of Rend Charges of 100 l. per annum, to one, & other voluntary Annuities to his Friends and Servants, which would be avoided by the Deed. And all the subsequent acts of the Duke so inconsistent therewith, That it is next to impossibility to think that the Duke should have done the same, and yet be acquainted with the said Deed.  
And the Lord Ch. Just. Pollexfen, and Sir Robert Clayton say, that they enquired on the said occasions, what settlement the Duke had made, and could hear of none, but the Marriage-Settlement in 1669. Besides, Mr. Courtney says, it was under great Injunctions of Secrecy, the Earl spoke to him about it. And the Earl offers no proof that it was ever seen in the Duke's Custody, or delivered to him by the Duke, from the time of the first Execution thereof, only says the Duke gave it to him in his Bedchamber, and no body present, unless some body might be behind the Bed. And there is nothing does more clearly prove the Concealment of the Deed from the Duke, than his great Care about his last Will in 1687.  
However, 
Third General Head: it is in Equity Revoked.  though the Power of Revocation be not literally pursued, so as to be a Revocation in strictness at Common Law; yet in Equity under these circumstances, the said last Will of 1687, aught to be adjudged a Revocation thereof, as made pursuant to the intent of that power thereby reserved to the Duke: The Witnesses according to the Letter of the Power ought to be six, and three of them to be Peers, but they need not all be present at the same time, nor all to subscribe their names. Now though there were only three Witnesses present at first, yet there were many more than six, to whom the Duke afterwards published it here and in Jamaica: So that there wants neither number nor credibility of Witnesses, only quality for three of them, which 'tis hoped will be no objection in this Case; when it was not possible, when he last published the Will in Jamaica, to have it.  
But the Court would not allow this in Jamaica to be a Publication, being accidental, though it was plain in the proof, That the Duke took it then in his hand, and told the Witnesses it was his Will, and directed the Keys of his strong Box, where it was kept, to be given to the Duchess if he died: And the more accidental it was, the more it shows the Innocency and Sincerity of the Duke's intentions.  
It does appear upon the Face, 
●●●ching the ●●●t of Trust.  and by the express words of the Deed, that the Estate limited to the Earl, is upon this special Trust and Confidence, That he shall sell so much of the Lands as shall fully and honestly pay all the Duke's Just Debts, and Legacies, and Funeral Charges, as much as the Personal Estate comes short in the Payment thereof by his Executors in his said Will mentioned.  
So that, according to this very Deed, whatsoever Debts the Duke had contracted, or should contract, though not in the presence of Six Witnesses, and tho' they were to the full value of the said Estate, the Earl must, by the Letter of the Trust, sell the Estate to pay the same; and so must he have done to satisfy all the Devises and Legacies, which the Duke at his pleasure should make or give by any other Will, were it not for the Addition of those Five Words, viz. (In his said Will mentioned.)  
Now, when one of the chief Considerations of the said Deed is expressed, to corroborate that Will of 1675. and make good those Legacies given thereby; and that the Last Will does so plainly revoke that Will; and that the Earl by reason thereof would now have the whole without paying the Legacies; What more just construction, than that this Deed, 
Reasonable Construction of the Deed.  as the Case was in Dyer's Reports, should be constructed, quasi a Will: And that there was a Trust for the said Duke, who might have charged it to the full value; and that thereupon the Last Will of the first and last Owner of the Estate may not be frustrated.  
Nay, by such Construction several of the chief Ends pretended even of the Deed, will be also answered; for, the Descent to the Posterity of a Regicide, as also the Heir of any other person setting up any Counterfeit or Surreptitious Will, which are intended to be obviated by the Deed, will be as well this way prevented, as they are by the Deed, or any other Construction. And the rather also ought such Construction to be made, for that in the Draught which is produced as a Support of the Deed, just after the said five restrictive words, viz. (In my said Will mentioned) there appears so much of that sheet as would contain two lines hath been cut away from the bottom, where the said five words end: And by the remaining Heads of the Letters it appears, there was another line writ before it was cut, which might very well be to pay his Debts and the Legacies in the said Will mentioned (or in any other Writing to be made or appointed). And if the words had been so, they will not deny, but that the Last Will would have had effect thereon.  NB. This cutting off the under part of the Draught in this material place was never Observed till the Last Hearing; and till a good account be given, how the words came to be cut, they should be presumed to be for the Appellant's Advantage. 
Now, for the Privy-Seal which the Earl hath, promising, that the King would create him Duke of Albemarle, and also give him that part of Theobald's which was to revert to the Crown, 
Answer about the Privy-Seal, and the old and late Duke their Services & Friendship.  and is said to be got at the instance of George Duke of Albemarle, in case his Issue Male failed.  
It is plainly answered, That both those were things entirely the King's, but that the Duke never intended him any of his Estate. He made a Setlement on his Deathbed of all his Estate, and also before had made his said Will, and was so far from giving the said Earl any part of his Estate, that he did not so much as Name him a Trustee in either of them; and by his Will appointed nine Guardians of his Son, but the Earl of Bath none of them; and, That it was not Duke Christopher's constant Intention, appears by a Will of his made in 1673. whereby the bulk of his Estate is divided amongst his other Relations, and nothing given to the Earl of Bath, but a small Remainder after an 〈…〉 ●erril Greenvill.  
And for his Relation, Friendship, and Services, All that may be, without his having the Estate, and the Friendship and Services as is believed, were fully returned; and if they were not, the Duke remembered them sufficiently by the Last Will, in the said Devise to his said Son.  
As to Col. Monk deceased, 
About Colonel Monk.  who (now he is not to speak for himself) has been greatly disparaged, he was publicly known to be a Gentleman of great Worth and Honour, and as such was raised in his Profession. He had the advantage of the Earl, by being of the Duke's name, for whom, and for his Name, the Duke expressed great Regard and Concern; and on all occasions in Company, and by Letters and otherwise, the Duke called and treated him as his Relation, and one of the Friends he loved best, which is Reason sufficient for what he did.  Lastly, It is to be noted, 
Court declared several things mysterious, and not to be understood.  That though there be a Decree against the Appellants, yet in the giving their Opinions of the said Matters, as to the Stories of Thompson, and some other things, it was declared on the Bench, They were so mysterious, they could not be understood. And therefore it was by another on the Bench declared, He would leave several things out of the Case as mysterious, and to that effect. But it is with humble submission offered to consideration, Whether the Reason and Argument be not better, That they ought therefore to be brought into the Case, and that the Deed ought therefore to be set aside; considering that the Earl of Bath, who pioduces it, was all along privy, as he says, to every thing of it, and not as a Stranger thereto. 
For all which Reasons the Appellants humbly hap their Lordships will Order the said Decree to be Reversed, and the Appellants relieved, and that the said Last Will, so solemnly made, as aforesaid, may be Established, as the Settlement of the Duke's Estate as he intended the same.