Wills still remaining to be transcribed

25 August 2013 I blogged the total number of wills that I still have remaining to be transcribed. I am going to do an update just to remind me of wills that I have promised to do over time and the remaining Blake wills that I am hoping to complete by the end of the year. 

Blake 486 (includes 7 only for which no place is indicated)
Abbs 1
King 17
Kingdon 1
Kip 3
Locke 7
Burges 1
Butt 1
Carter 3
Chorley-Churley-Charley 15
Coffin 3
Kent 10
Knight 2
Lambden 5
Lywood 4
Millin 3
Moggeridge-Modridg-Moggridge 12
Question 3
Quirke 1
Rawlings-Rawlins 12
Robson 2
Rolles 3
Routledge 5
Rowcliffe 6
Siderfin 3
Snowe 5
Tapp 1
Thomas 3
Upcott 3
Vicary 6

I have since then acquired a number of new wills including:

Blake at Record Offices not PCC which all the above Blake are

namely from Dorset, Hampshire, London, Westminster, Gloucestershire Record Offices

482 wills

Family Search I still have 21 wills to transcribe

Total number of wills is an amazing number:  1109 wills

A busy job ahead for me still but I remain dedicated to complete all the Blake wills that I am able to transcribe but with summer coming on I can see my time will be shortened somewhat as I have a couple of other projects that I want to complete so finishing by the end of December for the PCC wills might work but definitely not for all the new wills that I have acquired.

Will of John Bradby Blake, Supra Cargo in the service of the honourable the united Company of Merchants of England trading to the East Indies, Caton, China - The National Archives PROB 11/1001/313 and 11/1011/166, probated 13 Oct 1774

This is one of the wills that would not have appeared until much later as it is in my Miscellaneous Locations folder under East India. John Bradby Blake is the testator.

Looking back at John, the testator’s, mother and she was living in Speenhill Berkshire at the time of her will being written. Major houses in Speen include Speen Manor, Speen Hill Lodge and Goldwell House on the Bath road. The latter road was much favoured by wealthy Newburians of the eighteenth and nineteenth centuries. Until commercial redevelopment in the second half of the twentieth century, it boasted several fine houses.

Interesting that Mary Blake should be living in Speen where there was a Blake family in the 1500s and 1800s. Will of James Blake, yeoman of Speen, probated 13 Mar 1807 and he mentions a daughter Jane Brown in London transcribed earlier:

http://kippeeb.blogspot.ca/2013/04/will-of-james-blake-yeoman-of-speen.html

and the will of William Speen, yeoman of Speen, probated 28 Jul 1552 and he mentions his son Anthony and brothers John and Richard:

http://kippeeb.blogspot.ca/2012/05/will-of-william-blake-yeoman-of-speen.html

Probably a coincidence but interesting nonetheless.

The spelling of the name is now confirmed to be John Bradby Blake and I will go back and correct that spelling in the earlier wills as it did rather look like Bradly. The transcription appears to be a bit disjointed towards the end. The probate has not been copied. The date of the probate given to this one was from another will. It would appear that John Blake first deposed and then at a later date John Blake and his daughter Sally Hitchin Blake deposed.

Transcriber: Elizabeth Kipp
Recorded: 30 March 2014
Source: The National Archives, PROB 11/1001/313 and PROB 11/1011/166
Testator: John Bradby Blake, Supra Cargo in the Service of the hon[oura]ble the united Company of Merchants of England trading to the East Indies
Place: Caton, China
Type of Record: Will
Date of document: 30 Nov 1772, probated 13 Oct 1774 and around the 12 Sep 1775
Condition: 18th century English, legible copy

[Top] Canton in China November the 30th 1772
[Margin]: John Bradby
[Margin]: Blake Esq[uie]r

1    I John Bradby Blake
2    Supra Cargo in the Service of the Hon[oura]ble the united
3    Company of Merchants of England trading to the East
4    Indies do make this my last Will and Testament hereby
5    revoking a former Will made by me on the 13th day of
6    January 1767 or that that time and also the Codicil
7    thereunto annexed on or about the twenty first day of
8    December 1768 and left in the hands of my Father Also
9    hereby revoking and rendering null and void all and each
10    Will and Testament prior to the date of this present Writing
11    which I again declare to be my last Will and Testament
12    First I will and direct that all my just debts and Funeral
13    Expences be fully paid To my dear Sister Sally Hitchin Blake
14    I leave and bequeath One thousand pounds Sterling (£1000)
15    To my dear Sister Arabella Blake I leave and bequeath
16    one thousand pounds Sterling (£1000) To my dear Sister
17    Mary Tymewell Blake I leave and bequeath One thousand
18    pounds Sterling (£1000) the two first mentioned Legacies
19    to my dear Sisters Sally Hitchin Blake and Arabella Blake
20    I desire may be unto themselves respectively out of
21    the first monies that are or may be in the hands of my
22    Executor and Executrix after all just debts and discharges the
23    latter Legacy unto my dear Sister Mary Tymewell Blake to
24    be also paid in like manner unto my dear Father In Trust
25    for my said Sister until she attains the age of twenty one
26    years and in case of her death without Children before that
27    period I leave the said Legacy to be equally divided between
28    my abovementioned Sisters Sally Hitchin Blake and Arabella
29    Blake I give and bequeath to my honoured Father all my
30    Books Mathematical Instruments China paintings ChinaWare
31    Lacquer Ware and all Chinese Curiosities that I may have
32    actually purchased or sent to Europe Unless I have ordered
33    particular articles for particular persons and have specified
34    the same in Writing or otherways Except all Legacies that
35    may be annexed either to this Will or Codicils signed by me
    [Page 2]
36    of a later date than this my present Will and Testament
37    all which I direct may be first discharged the rest residue
38    and remainder of all my Estate and Effects whatsoever and
39    wheresoever both real and personal which I shall or may
40    be any ways seized possessed of interested in or intitled unto
41    at the time of my death I hereby order and direct may
42    be placed in Trust of any five persons whom my Father
43    John Blake my Mother Mary Blake my three Sisters viz
44    Sally Hitchin Blake Arabella Blake and Mary Tymewell
45    Blake may chuse to appoint each of them to appoint One
46    Trustee at their own pleasure and again respectively to
47    chuse another Trustee upon the death of the people q
48    appointed or upon their declining such Trust so that all may
49    have at all times a Trustee who is appointed
50    at the will and pleasure of each person respectively interested
51    in this Legacy This the Residue of my Estate to be either
52    placed in the public Funds Landed Estates Mortgages or in
53    any manner the majority of Trustees so appointed may think
54    proper and at their pleasure again changed renewed and
55    placed to Interest in what ever manner they may deem more
56    secure and for the General Interest of all parties concerned the
57    whole Interest or profits arising therefrom to be paid to my
58    honoured Father John Blake annually for his own use and
60    benefit during his Lifetime and in case of his death before
61    the death of my dear Mother the whole Interest or Profits
62    arising from this Trust to be paid in like manner to my said
63    dear Mother Mary Blake from the time of my Father’s death
64    during her own Life and at the death of both my Father
65    and Mother the aforementioned Capital vested in the hands
66    of the Trustees aforesaid being the Nett Residue and
67    Remainder of my Estate at the time of my death I will order
68    and direct may be by the aforesaid Trustees divided equally
69    share and share alike between my three Sisters before named
70    in this Will viz Sally Hitchin Blake Arabella Blake Mary
71    Tymewell Blake for their own use benefit and behoof
72    respectively and Lastly I do hereby constitute and appoint
73    my honoured Father John Blake and my dear Sister Sally
74    Hitchin Blake Executor and Executrix of this my last Will
75    and Testament In Witness whereof I have hereunto set
76    my hand and seal this thirtieth day of November in the year
77    of our Lord One thousand seven hundred and seventy two at
78    Canton in China John Bradby Blake Signed sealed
79    published and declared by the Testator John Bradby Blake
80    as and for his last Will and Testament in the presence of
81    us who in his presence and in the presence of each other
82    at his request have hereunto subscribed our Names as
83    Witnesses Will[ia]m Rous W[ilia]m Harrison Matt[he]w Raper Jun[io]r
84    Canton in China
85    The following particulars I mean as Codicils to a
86    Will
    [Page 3]
87    Will and Testament made by me at Canton in China dated
88    the        day of      Signed sealed and Witnessed the
89    original sent to Europe by hand the copy remaining among
90    my papers
91    1Imprimis To my Friend William Rous Esq[uie]r I leave
92    and bequeath one hundred pounds sterling (£100 Sterling)
93    Signed John Bradby Blake
94    2To my Friend William Harrison Esq[uie]r I leave and bequeath
95    one hundred pounds sterling (£100 Sterling) Signed John
96    Bradby Blake
97    3To my Friend Mr John Hogarth Surgeon and Apothecary
98    London I give and bequeath my Gold Watch made by Elliott
99    Signed John Bradby Blake
100    4To my Friend Thomas Bevan Esquire I leave and
101    bequeath my diamond Ring Signed John Bradby Blake
102    5To my Servant at the time of my death I leave and
103    bequeath all my Linnen and Wearing apparel subject however
104    to the Will and pleasure of William Harrison Esquire if he
105    does not think his behavior intitles him to them I leave
106    them to his option to give to such Servants in the Factory
107    or other persons whom he may think proper and moreover
108    should the said Mr Harrison think his behavior does entitle
109    him to a further remembrance I leave him Twenty pounds
110    Sterling if not this last Legacy to be null and void Signed
111    John Bradby Blake
112    This is a true and faithful Copy taken by me W[ilia]m
113    Harrison Canton Nov: 19th 1773
114    Oct[obe]r 12th 1774
115    Appeared personally John Blake of the parish of
116    Saint Margaret Westminster in the County of Middlesex
117    Esquire and made Oath that he is the natural and lawful
118    Father and one of the Executors named in the last Will and
119    Testament of John Bradby Blake Esquire late a Supra
120    Cargo in the Service of the Honorable the united Company
121    of Merchants of England trading to the East Indies at the
122    City of Canton in China a Batchelor deceased the said
123    original Will being now hereunto annexed and bearing date
124    the thirtieth day of November in the year of our Lord
    [Page 4]
125    Appeared personally John Blake of
126    the parish of St Margaret Westminster in the County of
127    Middlesex Esquire and Sally Hitchin Blake of the same parish
128    Spinster and being sworn upon the holy Evangelists to depose
129    the truth made Oath as follows to wit that they are the natural
130    and lawfull Father and Sister of John Bradby Blake late
131    Supercargo in the Service of the honourable the united
132    Company of Merchants of England Trading to the East Indies
133    at the City of Canton in China Esquire deceased and that they
134    knew and were well acquainted with the manner and
135    character of handwriting and Subscription of the said deceased
136    having often seen him write and subscribe his Name and
137    having now viewed and carefully perused the paper Writing
138    hereunto annexed purporting to be and contain five Codicils or
139    Additions to the last Will and Testament of the said deceased
140    severally numbred 1 2 3 4 5 and respectively Subscribed John
141    Bradby Blake they these deponents say that they verily in
142    their Consciences believe the whole Series and Contents of this
143    said Paper Writing and the Names John Bradby Blake
144    appearing to be set and subscribed to each of the said Codicils
145    to be all of the proper handwriting and Subscription of the
146    said deceased Jno Blake Sally Hitchin Blake 8th September 1775
147    The said John Blake Esquire and Sally Hitchin Blake Spinster
148    were duly sworn to the truth of this affidavit before me
149    Geo: Harris Surrogate B[  ]t Jenner Not Publ

Will of John Blake, Esquier, Saint Margaret Westminster, Middlesex - The National Archives PROB 11/1189/132, probated 9 Mar 1790

This is the will of John Blake, husband of Mary Blake (will blogged yesterday)

http://kippeeb.blogspot.ca/2014/03/will-of-arabella-blake-spinster-upton.html

and son of Captain John Blake of the Honourable East India Company (still have not found further information on this man), and father of Arabella Blake, spinster, whose will was blogged earlier:

http://kippeeb.blogspot.ca/2014/03/will-of-arabella-blake-spinster-upton.html

The testator is possibly the John Blake baptized 29 Aug 1713 at Saint Dunstan, Stepney and son of John Blake and possibly Mary Daberon. The supposition for this is the published registers for Westminster Abbey where a note attached to the marriage of John Blake and Mary Tymewell mentions that he was the son of Captain John Blake and Mary his wife and born at Limehouse, Middlesex 27 Aug 1713. He is then mentioned as living on Parliament Street, Westminster in his latter life. Limehouse is in the Tower Hamlets. St Dunstan Stepney is also in the Tower Hamlets.

By way of determining which John Blake is the father of the testator there is one clue in the will. He mentions the children of his nephew Blake Bradby namely James Bradby and the wife of Blake Bradby, Elizabeth Sophia. Possibly he has a sister married to unknown Bradly.

The will of John Bradby Blake is to come next and this is the brother of Arabella and son of the present testator.

I shall try to have a further look at the Honourable East India Company another time.

Transcriber: Elizabeth Kipp
Recorded: 29 March 2014
Source: The National Archives, PROB 11/1189/132
Testator: John Blake, Esquier
Place: Saint Margaret Westminster, Middlesex, England
Type of Record: Will
Date of document: 6 Mar 1781, probated 9 Mar 1790
Condition: 18th century English, legible copy

[Margin]: John
[Margin]: Blake
[Margin]: Esquire

1    I John Blake of Parliament
2    Street in the parish of St Margaret Westminster in the
3    County of Middlesex Esq[uie]r being of sound Mind Memory
4    and understanding do make this my last Will and Testament
5    in manner following that is to say I will and direct that
6    my Funeral Expences and all my just debts be discharged
7    paid and subject thereto I give and dispose of my Estate
8    and Effects as follows I give unto my daughter Sally
    [Page 2]
9    Hitchin Pelly wife of Henry Hinde Pelly of Upton in the
10    County of Essex Esq[uie]r the Capital Sum of two Thousand
11    pounds old South Sea annuities I give unto my daughter
12    Arabella Blake the like Capital Sum of two Thousand pounds
13    Old South Sea Annuities I give unto my daughter Mary
14    Tymewell Blake the like Capital sum of two Thousand
15    pounds Old South Sea Anuities and my Will is that the
16    said several Capital Sums of Old South Sea Annuities
17    shall be transferred to my said daughters by my Executrix
18    hereinafter named within three Calendar Months next
19    after my death but in case I shall not be possessed of
20    old South Sea Annuities sufficient to answer the said Legacies
21    Then I will and direct that my said Executrix shall by
22    and out of my personal Estate buy so much Old South
23    Sea Annuities as will make up the deficiency I give to
24    my Wife Mary Blake and the said Henry Hinde Pelly
25    the Capital Sum of One Thousand pounds three per
26    cent Bank Annuities reduced upon Trust they they or
27    the Survivor of them or the Executors or Administrators
28    of such Survivor shall transfer assign and pay the
29    same and the Interest and dividends thereof that shall
30    not be applied for the purposes hereafter mentioned
31    unto my adopted Grandson John Joseph Blake now
32    living with me and reputed to be the Son of John
33    Bradby Blake (late a Supra Cargo at Canton in
34    China deceased) by Maria de Nosorio of Macao
35    when and if he shall live to attain his age of twenty one
36    years which will be on the seventh day of January
37    1795 but in case of his death before that age then
38    I will that the said one thousand pounds three per
39    cent Bank annuities reduced or so much thereof as
40    they shall think proper for and towards the Maintenance
41    and Education of my said adopted Grandson I give to
42    James Bradby now an Infant Son of my Nephew
43    Blake Bradby deceased the Sum of one hundred pounds
44    the same to be paid by my Executrix hereafter named
45    to Elizabeth Sophia Bradby Mother of the said Infant
46    to be applied by her for the benefit of the said Child at
47    her discretion I give to Mr John Hogarth Apothecary
48    of Vigro Lane in the parish of Saint James Fifty pounds
49    or a Ring as a Mark of Family Friendship I give to
50    Mr Bateman Robson of Lincolns Inn twenty five pounds
51    and to Mr Christopher Morris of the same place the
52    like Sum of twenty five pounds I give to the Treasurer
53    of Greenwich hospital for the time being the Sum of
    [Page 3]
54    twenty five pounds to be applied to the Fund for the benefit
55    of the Seamen in that hospital All the Rest Residue and
56    Remainder of my Estate and Effects whatsoever and
57    wheresoever whether Real or personal I give devise and
58    bequeath the same and every part thereof unto my
60    said wife Mary Blake her heirs Executors Administrators
61    and Assigns to and for her and their own use and
62    benefit absolutely for ever and I do hereby constitute
63    and appoint my said wife sole Executrix of this my
64    last Will and Testament hereby revoking and declaring
65    void all former and other Wills and Codicils by me at
66    any time heretofore made and do declare this only to be
67    my last Will and Testament In Witness whereof I
68    have to this my said last Will and Testament (all of
69    my own handwriting) set my hand and Seal this sixth
70    day of March in the Year of our Lord one thousand
71    seven hundred and eighty one J Blake Signed
72    Sealed published and declared by the said Testator John
73    Blake (after the word “pounds” being interlined in the
74    fifteenth Line as and for his last Will and Testament in
75    in the presence of us who in his presence and in the
76    presence of each other have hereunto subscribed out
77    Names as Witnesses Samuel Stratt John Croft Edw[ar]d
78    Parratt
79    This Will was proved at London on the
80    ninth day of March in the year of our Lord one
81    thousand seven hundred and ninety before the worshipful
82    John Michell doctor of Laws Surrogate of the Right
83    honourable Sir William Wynne Knight doctor of
84    Laws Master Keeper or Commissary of the Prerogative
85    Court of Canterbury lawfully constituted by the Oath
86    of Mary Blake Widow the Relict of the deceased and
87    sole Executrix named in the said Will to whom Admon
88    was granted of all and singular the Goods Chattels
89    and Credits of the said deceased she having been
90    first sworn duly to administer

Spring in Ottawa, Canada

Another spring has come to Ottawa; the robins have returned. This morning we were greeted with ten centimetres of snow - the heavy wet stuff that does tell us spring is coming one of these days. The snow in the back yard is still at least a metre deep and higher in spots. Mind you a couple of hot days and that will quickly melt fortunately. Then it will be mud season which is really spring here; lots of mud and pretty spring flowers! The crocuses often pick their way through the snow to bloom in our back yard in the warm spots.

Working on an interesting set of wills for Captain John Blake's family of the Honourable East India Company. I know that the furtherest back John Blake lived in the late 1600s and trying to match him up with some of the John Blake wills - not an easy task given the number of John Blake wills! However it was his grand daughter Arabella Blake that started the search along with Sally Hitchin Pelly whose husband Henry Hinde Pelly and their son John Henry Pelly have quite a bit online. But working back has been a challenge and I was surprised once I found the name of the wife of the father of Arabella (also a Captain John Blake in the HEIC) that other researchers hadn't located the marriage of John Blake and Mary Tymewell at Westminster Abbey. But in general I do not see that anybody has been researching the line.

The will of John Blake, father of Arabella and husband of Mary Tymewell will appear in my blog a little later today. I am still working on the discussion. 

Followup to Sensationalism used as a means of selling books

A flurry of emails back and forth over the past couple of days has hopefully now come to a close. It was not a subject which I particularly wanted to discuss since I believe it belongs in the past where it happened. I am not in favour of sensationalism and especially wonder at the right of a person to publish such a story when it isn't even their own family (and they lack that intimate knowledge of the circumstances around the family). However, that being said, I refused to allow my research to be part of her book and also I refused permission to use my 2x great grandfather's picture in the book. Her original reason for writing to me was looking for the relationship of my 2x great grandfather to this family and for the history of this family back in England. Perhaps my 2x great grandfather's face was about to be forever immortalized on a book about one of his uncle's descendants!

Both (the history of this family and the image) are available on the internet as I have freely shared this information although have put copyright restrictions on the use of my material for publications. I was told that my material would not be used and hopefully that will be followed through but when you deal with a different country and an individual it can be problematic.

The last email received from this individual informed me that 50% of some history is sensationalism. This individual claims to be the town historian for this particular area. As usual when people are finding that they can not work around you on something they pull out the health card which also happened in this case. We all suffer from stress in one way or another - that is a human affliction.

She claims to have people asking her to write the book but also clearly stated that no family member would answer her letters. My comment "it is a pity to ride on the back of a family other than your own to achieve success" stands and without the consent of the family there I feel that the book is a slap in the face to them.

The story is a sad one that involves a husband "defending" his wife from a preacher who went in for what I call fire and brimstone sermonizing. The wife was swayed in her thinking by this preacher to the extent that she chopped off her arm. Since they had a small child/infant at the time; the husband was quite irate. Unfortunately he took matters into his own hands and killed the preacher. This was in the early 1900s at a time when life was somewhat rougher in Australia. Various newspapers articles were written about the family which had undergone some hardship. The claims of mental illness were levied at the family in what I now consider to be an unfair way; prior to her writing to me I did not have an opinion. The husband was shot dead by the local police (the husband again made the mistake of shooting first but as an excellent shot he just grazed the shoulder of the policeman; the policeman killed him outright with a shot to the head (for which he was praised actually).

The whole episode rather reminds me of the Donnelly Family in southwestern Ontario. Another family about which I do not have an opinion but because one of the people involved was a Blake I have done a little extra reading on this particular item. It was the publications on this family that first turned me off of sensationalism writing - picking up on a single item in history - which is done solely to sell books with no thought of the effect on descendants of the family that is being written about. It is one thing to write about your own family but quite another to pick on a family that has lived through the tragedy once and forcing them to relive it again and again and again as the printed word circulates across Australia if indeed what this author says is true that this is the type of book particularly enjoyed there.

Perhaps the most poignant part of all of this is the individual claimed to have researched this family for fifteen years but was unable to connect this family back to the Pincombe family of Devon although did know that John Pincombe (the emigrant) was born in Bishops Nympton from my webpages. To make all the effort to quote the newspaper articles of 100 years ago and not to do a thorough job of the genealogical picture of this family is rather poor genealogy.

I decided to look at what I am supposed to have written about John Pincombe and Mary Ridd - the original emigrants to Australia which was the reason that she wrote to me in the first instance.

http://kippeeb.blogspot.ca/2011/10/will-of-william-pincombe-of-bishops.html

This will is written by the uncle of my 2x great grandfather John Pincombe. William, the testator, was the father of William Pincombe married to Maria Torrington. They had nine children: Maria Anne Torrington Pincombe, Sarah Jane Torrington Pincombe, William Silas Torrington Pincombe, John Pincombe (died as an infant), John Pincombe, Mary Elizabeth Pincombe, Harriet Torrington Pincombe, Henry William Torrington Pincombe and Thomas Torrington Caren Pincombe. Only some of these children emigrated to Australia.

John Pincombe (son of William Pincombe and Maria Torrington) married Mary Ridd december quarter 1859 at Barnstaple and they had six children of whom only the first is born in Bishops Nympton  march quarter 1861 with all the rest of the children born in Australia. This is contrary to one of the emails from this individual claiming that all of the children except Gertrude Mary were born in England with Gertrude Mary being the youngest. In actuality she was the second child born to this couple.

Will of Mary Blake, Goldwell House Speenhill, Berkshire - The National Archives PROB 11/1371/178, probated 15 Mar 1802

This is the will of Mary Blake, wife of Captain John Blake of the Honourable East India Company, and mother of Arabella Blake, spinster, whose will was blogged yesterday:

http://kippeeb.blogspot.ca/2014/03/will-of-arabella-blake-spinster-upton.html

All the details on Mary can be found in this earlier blog after her marriage.

She was the daughter of Charles Tymewell of Peckham, Surrey, Gent and Arabella (widow of John Hitchin, Gent) of Peckham, Surrey.

There is a baptism for a Charles Timewell at Saint Olave, Southwark, Surrey 22 Feb 1694 (also born 22 Feb 1694) son of Charles Timewell and Priscilla (an earlier baptism 31 Dec 1690 also for Charles Timewell with the same parents). Peckham is south of Southwark (a couple of miles).
From the Allegations for marriage licences issued by the vicar-general, Volume 2:

25 Oct 1687 Charles Tymewell of St Olave’s Southwark, Surrey, Feltmaker, bachelor about 27 and Mrs Priscilla Collins of Christ Church, Surrey, Spinster about 21 years with the consent of her father Robert Collins, Christ Church.

Another record from the newspaper.com site: Charles Tymewell and Arabella his wife were married 9 May 1721 at St Ann’s Church near Aldersgate. Their daughter Mary Tymewell was born ….. The rest of the text is missing. If this is the present testator then she was born after 1721 and that would have made her less than 76 years of age when she wrote the will. At that time some of her grandsons were over 21 years of age and so the age would seem to fit. She married John Blake in 1743 and with a birth year of 1721 or later her age would be 22 years or less when she married and their first child was born in 1744 (Sally Hitchen Blake baptized 12 Oct 1744).

Is the Charles Tymewell married to Priscilla the father of Charles the father of Mary the testatrix? Mary’s father Charles would have had to be born/baptized 1694 which would make him 27 years of age when he married Arabella but she was named as his third wife. The earliest that he would have married would likely be 1715 plus or minus a couple of years. I am not actually tracing the Tymewell family however, so will leave it with this information gleaned thus far.

The Will of Charles Tymewell was probated 26 Sep 1727 and a quick glance at his will written in Peckham, Surrey and he is mentioned as a Gentleman. He remembered members of the Tudman family. He remembers his daughter Mary and she is a young child. He leaves her three thousand pounds. He also remembers his daughter in law (child of Arabella Hitchin who was a widow when she married him) with a property in Somerset. This will was probated but not administered until Mary Blake (wife of John Blake) was granted administration of her mother’s estate intestate which included administering her father’s estate. Always nice to have these little notes written on the probate to help link families.

Transcriber: Elizabeth Kipp
Recorded: 29 March 2014
Source: The National Archives, PROB 11/1371/178
Testator: Mary Blake
Place: Goldwell House Speenhill, Berkshire, England
Type of Record: Will
Date of document: 7 Jul 1797, probated 15 Mar 1802
Condition: 19th century English, legible copy

[Margin]: Mary
[Margin]: Blake

1    I Mary Blake
2    of Goldwell house Speenhill in the County of Berks Widow
3    being of sound mind memory and understanding do make
4    this my last Will and Testament in manner Following
5    that is to say, first I will and direct that all my Just debts
6    and Funeral Expences shall be fully paid and satisfied and
7    subject thereto I give and dispose of my Estate and Effects as
8    follows I give devise and bequeath all my Freehold
9    copyhold and leasehold Estates whatsoever and
10    wheresoever with all and every the appurtenances
11    thereto belonging subject nevertheless to the payment
12    of my debts and the pecuniary legacies hereafter given in case my personal Estates not hereafter
13    specifically bequeathed shall not be sufficient to
14    answer and pay the same unto my daughter
15    Arabella Blake and her assigns for and during the
16    term of her natural life and from and after her
17    death then I give devise and bequeath my said Freehold
18    Copyhold and Leasehold Estates unto my Son in Law
19    Henry Hinde Pelly Esq[uie]r his heirs Executors Admors
20    and Assigns for ever or for such Term Estate and
21    Interest as shall then be to come therein I give
22    to my said Son in Law Henry Hinde Pelly Esq[uie]r one
23    hundred pounds I give to my daughter Sally Hitchin
24    Pelly his Wife one hundred pounds I give to my
25    Grand daughter Mary Pelly daughter of the said
26    Henry Hinde Pelly and Sally Hitchin Pelly his Wife
27    the Capital Sum of two hundred pounds South Sea
28    Stock (part of the South Sea Stock) now standing in my Name and I do direct
29    that the same be transferred within twelve Calendar
30    Months after my decease to her the said Mary
31    Pelly I give to my Grandson Raymond Pelly son of the
32    said Henry Hinde Pelly and Sally Hitchin Pelly his
33    Wife the like Capital Sum of two hundred pounds
34    South Sea Stocks now standing in my Name and
35    I do direct that the same together with the dividends
36    to accrue due thereon after my decease shall be
37    transferred and paid to him when he shall attain his
38    age of twenty one years and I do hereby authorize
39    empower and direct my said Executors from time to
40    time during the Minority of my said Grandson to lay
41    out and invest the dividends to accrue due on the said
42    Sum of two hundred pounds South Sea Stock in the
43    purchase of South Sea Stock to accumulate for the
44    benefit of my said Grandson I give to my said
45    daughter Arabella Blake one thousand pounds now
46    lent on Mortgage to Mr John Dearing of Canterbury also
47    the Capital Sum of sixteen hundred pounds three
48    pounds per cent Consolidated Bank Annuitys part of
49    two thousand four hundred pounds three per Cent
50    Consolidated Bank Annuities
    [Page 2]
51    now standing in my Name and all my
52    share and Interest in Bricker Barn Turnpike I
53    give to the said Henry Hinde Pelly his Executors and
54    Administrators the Capital Sum of one thousand
55    pounds East India Stock standing in my Name
56    upon Trust that he and they do and shall from
57    time to time during the natural life of my daughter
58    Mary Tymewell the Wife of George Anson Nutt
60    Esq[uie]r pay to or otherwise permit and suffer my said
61    daughter and her assigns to receive and take the
62    Interest dividends and Annual produce thereof to
63    and for her own sole separate and peculiar use
64    independent of and not to be subject or liable to the
65    debts Controul or Engagements of her said husband
66    and for that purpose my Will is and I direct that
67    her Receipt alone shall be a sufficient discharge
68    for such Interest Dividends and annual produce
69    and from and after the death of my said daughter
70    Mary Tymewell Nutt upon Trust that he and they
71    do and shall transfer assign and pay the said
72    Capital Sum of one thousand pounds East India
73    Stock and the Interest dividends and Annual
74    produce to accrue due after the death of my said
75    daughter unto and among all and every the
76    Child and Children of my said daughter Mary
77    Tymewell Nutt if more than one equally share
78    and share alike and if but one then to such only
79    one the Shares of such Children having a Son or
80    Sons to be assigned transferred and paid to him
81    and them at his and their age or respective ages
82    of twenty one years and of such of them being a
83    daughter or daughters at the like age or ages
84    of twenty one years or day or days of Marriage
85    which shall first happen and if any or either of such
86    Children shall die before such age or Marriage then
87    my Will is and I do direct that the shares of such of them
88    so dying shall go to the Survivors or Survivor of them
89    and be assigned transferred and paid at the same
90    time and be again subject and liable to the same
91    chance of accurer by Survivorship as their original
92    shares of the said Trust Monies due before directed to be
93    assigned transferred and paid and under subject to and
94    in case all such Children shall dye before such age or
95    Marriage of there shall not be any such Child then
96    upon Trust that he and they do and shall assign
97    transfer and pay the said Trust Monies and every
98    part thereof unto such person or persons and at such
99    time or times and in such manner as my said daughter
100    Mary Tymewell Nutt shall notwithstanding her
101    Coverture by any deed or deeds writing or writings
102    or by her last Will and Testament in Writing
    [Page 3]
103    duly executed in the presence of and attested by two
104    or more credible Witnesses direct or appoint and in
105    default of such direction or appointment do and shall
106    assign transfer and pay the same and every part
107    thereof unto the Executors or Administrators of my
108    said daughter Mary Tymewell Nutt and my Will is
109    and I do hereby authorize and empower the said
110    Henry Hinde Pelly his Executors or Admors from time
111    to time after the death of my said daughter Mary
112    Tymewell Nutt during the Minority of the Child
113    or Children of my said daughter Mary Tymewell
114    Nutt to lay out and invest the Interest dividends
115    and annual produce of the said Capital Sum
116    of one thousand pounds East India Stock in some or
117    one of the public Stocks or Funds to accumulate for
118    the benefit of the parties who shall be entitled to the
119    Capital of the said Trust Monies and that such
120    accumulated Stocks or Funds shall be assigned and
121    transferred with the Capital of the said Trust Monies
122    to the party or parties who by virtue of this my
123    Will shall be entitled to such Capital I give to my
124    Grandson Henry Anson Nutt Son of George Anson Nutt
125    and Mary Tymewell Nutt his wife the Capital Sum
126    of two hundred pounds South Sea Stock now standing
127    in my Name And I do direct that the same together
128    with the Interest and dividends to accrue due thereon
129    after my death shall be transferred and paid to him
130    when he shall attain his age of twenty one years and
131    I do hereby authorize empower and direct my said
132    Executors from time to time during the Minority of
133    my said Grandson Henry Anson Nutt to lay out and
134    Invest the Interest and dividends to accrue due on the
135    said Sum of two hundred pounds South Sea Stock in
136    the purchase of South Sea Stock to accumulate for the
137    benefit of my said Grandson I give to John Joseph
138    Blake the adopted Son of my Son John Bradby
139    Blake Esq[uie]r the Capital Sum of eight hundred pound
140    three pound per Cent Consolidated Bank Annuities
141    I give ti my daughter Mary Tymewell Nutt
142    four hundred pound South Sea Stock I give to Miss
143    Mary See who now lives with me fifty pounds I
144    give to my Maid Servant Eleanor Brenillead
145    the Sum of one hundred pounds and as to all the
146    rest and Residue and Remainder of my Estates and
147    Effects whatsoever and wheresoever which I shall
148    be seized possessed of or intitled unto at the time of
149    my death I give devise and bequeath the same
150    and every part thereof unto my said daughter
151    Arabella Blake her heirs Executors Admors and
152    Assigns for ever or far Estate term and Interest as
153    shall be there to come therein and lastly I do
    [Page 4]
154    hereby make constitute and appoint the said
155    Henry Hinde Pelly Esquire and my said daughter
156    Arabella Blake Executor and Executrix of this my last
157    Will and Testament hereby revoking and declaring
158    void all former and other Wills and Codicils by me at
159    any time heretofore made and do declare this only to
160    be my last Will and Testament In Witness whereof
161    I the said Mary Blake have to this my last Will and
162    Testament set my hand and seal this seventh day of
163    June in the year of our Lord one thousand seven
164    hundred and ninety seven Mary Blake Signed
165    Sealed published and declared by the said Mary
166    Blake as and for her last Will and Testament in the
167    presence of us who in her presence at her request
168    and in the presence of each other have hereunto
169    subscribed our Names as Witnesses Margaret Brown
170    Mary Lee Jere[mia]h Flack
171    This Will was proved at London on the
172    fifteenth day of March in the Year of our Lord one
173    thousand eight hundred and two before the Right
174    honorable Sir William Wynne Knight doctor of Laws
175    Master Keeper or Commissary of the Prerogative
176    Court of Canterbury lawfully constituted by the Oaths
177    of Henry Hinde Pelly Esq[uie]r and Arabella Blake spinster
178    the daughter of the deceased the Executors named
179    in the said Will to whom administration was granted
181    of all and Singular the Goods Chattels and Credits of
182    the said deceased they having been first sworn (to wit)
183    the said Henry Hinde Pelly before the Worshipful
184    Charles Cooke and the said Arabella Blake before the
185    Worshipful Samuel Pearce parson doctor of Law and
186    Surrogate duly to administer

Will of Arabella Blake, spinster, Upton, Essex - The National Archives PROB 11/1439/159, probated 5 Mar 1806

Arabella Blake, spinster, is the testatrix of this present will. She lived at Upton, Essex. I found an interesting webpage on The Descendants of John Pelly and the Pelly family is mentioned in this will.

http://www.pennyghael.org.uk/Pelly.pdf

Henry Hinde Pelly (son of John Pelly and Elizabeth Hinde) married Sally Hitchen Blake who was the daughter of a Captain John Blake (wife unknown) and they married 13 Jul 1776. Sally was said to be born in 1744 and died on 15 May 1824 (aged 80). This couple (Henry Hinde Pelly and Sally Hitchen Blake) had four children according to this document namely John Henry Pelly, William Pelly, Charles Pelly and Francis Pelly. The will mentions Henry Hinde Pelly and his wife Sally Hitchen Pelly and their children Charles, John Henry, Francis and Raymond and possibly a daughter Mary who married Benjamin Harrison.

John Henry Pelly (nephew to Arabella Blake) has a rather interesting life story:

http://www.oxforddnb.com/templates/article.jsp?articleid=21815&back=

Pelly, Sir John Henry, first baronet (1777–1852), merchant, born on 31 March 1777, was the eldest son of Henry Hinde Pelly (1744/5–1818) of Upton House, Essex, a captain in the service of the East India Company, and Sally Hitchen, the daughter of John Blake. His grandfather John Pelly was also a captain in the company's service, and his grandmother was Elizabeth, the daughter and heir of Henry Hinde of Upton. John is said to have been in his youth in the navy. If so, he quitted it without obtaining a commission. It is more probable that he was with his father in the company's service; that he had nautical experience of some sort appears certain. Having settled in business in London, he became in 1806 a director of the Hudson's Bay Company, of which he was afterwards successively deputy governor and governor. On 13 July 1807 he married Emma (d. 1856), the sixth daughter of Henry Boulton of Thorncroft, Surrey, the governor of the Corporation of Working Mines and Metals in Scotland and a director of the Sun Fire Office. They had eight sons and two daughters who survived infancy. In 1823 Pelly was elected elder brother of Trinity House, and, some years later, deputy master. In 1840 he was a director of the Bank of England, and in 1841 governor.

As governor of the Hudson's Bay Company in 1835 Pelly is remembered for having sent out the exploring parties which, under Peter Warren Dease and Thomas Simpson (1808–1840), two of the company's agents, did so much for the discovery of the north-west passage and of the coastline of North America. His share in this work is commemorated by Cape Pelly which marks the eastern extremity of Dease and Simpson Strait. In August 1838 he and Simpson travelled to St Petersburg to negotiate with Baron von Wrangel of the Russian American Company. These talks led in 1839 to the Hudson's Bay Company's leasing the Alaskan peninsula from the Russians. On 6 July 1840 Pelly was created a baronet, on the recommendation of Lord Melbourne. The duke of Wellington was on friendly terms with him. He died at Upton House on 13 August 1852.

J. K. Laughton, rev. Elizabeth Baigent

Sources 

GM, 2nd ser., 38 (1852), 527 • Annual Register (1852), 300 • Burke, Peerage • T. Simpson, Narrative of the discoveries on the north coast of America …, 1836–9 (1843) • DCB, vol. 8
Archives 

BL, corresp. with W. E. Gladstone, Add. MSS 44364–44368 • BL, corresp. with Sir Robert Peel, Add. MSS 40411–40592 • U. Southampton L., letters to first duke of Wellington

Likenesses 

H. P. Briggs, oils, Hudson's Bay Company, London
© Oxford University Press 2004–14
All rights reserved: see legal notice     Oxford University Press

J. K. Laughton, ‘Pelly, Sir John Henry, first baronet (1777–1852)’, rev. Elizabeth Baigent, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http://www.oxforddnb.com/view/article/21815, accessed 27 March 2014]

Sir John Henry Pelly (1777–1852): doi:10.1093/ref:odnb/21815

Now, to try to discover who Captain John Blake was, the father, of the testator and grandfather of John Henry Pelly above. Another record shows that Captain John Blake was with the Honourable East India Company Service. I should be able to learn more about him on Find My Past but first to continue checking the names on google.

Going to Family Search I did find a baptism for Mary Tymewell Blake 20 Jan 1758 (born 23 Dec 1757) at St James Westminster, Middlesex, England with father John Blake and mother Mary. There is a baptism for Sally Hitchen Blake 12 Oct 1744 at Saint Andrew Holborn, London. No baptism for Arabella located.

http://books.google.ca/books?id=0RAwAAAAYAAJ&pg=PA50&lpg=PA50&dq=John+Blake+%2B+Mary+Tymewell&source=bl&ots=nUJh5mhhEQ&sig=-5IB1yAKvjCUZJgag7ojn8LUXek&hl=en&sa=X&ei=Xos0U-q0MK78yAHrqYCIDQ&ved=0CC0Q6AEwAA#v=onepage&q=John%20Blake%20%2B%20Mary%20Tymewell&f=false

I did find a marriage for John Blake to Mary Tymewell 17 Nov 1743 at Westminster Abbey, London, England. The published registers for Westminster Abbey (The Marriage, Baptismal, and Burial Registers of the Collegiate Church or Abbey of St Peter Westminster, edited and annotated by Joseph Lemuel Chester, Private Edition, London, 1876, London: Mitchell and Hughes, Printers, Wardour Street, W.), show that John Blake was of St Andrews Holborn and Mary Tymewell of Camrewell, Surrey. There is a footnote attached to this particular entry which reads “He, son of Captain John Blake and Mary his wife, was born at Limehouse, Middlesex 27 Aug 1713, and became, like his father, a captain in the merchant service. His residence was sometime at Watcombe, in Brockenhurst, Hampshire and afterwards in Parliament Street, Westminster. He died 25 Feb 1790. She only daughter and heir of Charles Tymewell of Peckham, co. Surrey, Gent., by (apparently) his third wife, Arabella, widow of John Hitchin, of the same place, Gent., and was born about 1723. After her husband’s death she resided at Goldwell House, Speen Hill, Berkshire. Her will, dated 7 June 1797, was proved 15 March 1802. Their eldest surviving daughter and coheir married Henry Hinde Pelly, Esquire., and was mother of Sir John Henry Pelly, first Baronet of Upton, Essex.”

This is a tremendous find since most records do not have any information on the parents of Arabella, her brother John Bradby and sisters Sally Hitchen and Mary Tymewell. I also have not transcribed this will although I did think that I had all of Berkshire completed! I have downloaded the will from Ancestry and will do it next. From the register I have now learned that Captain John Blake is the son of another Captain John Blake and checking Family Search for his birth 27 Aug 1713 and there is a baptism for John Blake at Saint Dunstan, Stepney, London son of John and Mary Blake 29 Aug 1713. There is a marriage of John Blake and Mary Daberon 24 Mar 1702 at Saint Bride Fleet Street, London.

A little more information on a random search for Watcombe, Brockenhurst, Hampshire yielded a rather interesting comment about Watcombe Farm at Brockenhurt which was sold in 1759 by Captain John Blake (India Service). The farm was described as a mansion in a 1751 lease (Hampshire Record Office apparently. http://list.english-heritage.org.uk/resultsingle.aspx?uid=1000499  The Hampshire Record Office has an item 6M80/3/B86 which is described as a Counterpart lease for 1000 years of Watcombe Lane, in front of the mansion house of John Blake, leading from Brockenhurst into the New Forest, dated 22 Oct 1751 and Jeremiah Cray of Ibsley, esq and John Blake, of Brockenhurst, esq were mentioned in the document. A second document 6M80/E/T273 is a Bargain and sale of Watcombe House and lands, Brockenhurst, dated 2 Aug 1759 with John Blake of Watcombe, Brockenhurst and John Howard of Bedfordshire, esquire being mentioned.

Probably if I can acquire records from the Honourable East India Company Service I will be able to learn more about this Blake family. They are now traced back to the baptism of John Blake 29 Aug 1713 at Saint Dunstan, Stepney, London and possibly the son of John Blake and Mary Daberon. There were a number of Blake marriages at Saint Dunstan Stepney which I mentioned in my blog post for John Blake mariner of Stepney:

http://kippeeb.blogspot.ca/2012/11/will-of-john-blake-mariner-of-stepney.html

More to come when I blog the will of Arabella’s mother.

Names mentioned in the will:

Arabella Blake, Upton, Essex, testatrix
Sally Hitchen Pelly, sister
Charles Pelly, nephew, godson
Mary Harrison, niece, wife of Benjamin Harrison
Benjamin Harrison, esquire, husband of Mary
John Henry Pelly, nephew
Francis Pelly, nephew
Raymond Pelly, nephew
Mary Tymewell Nutt, sister
Mrs Joan Dearing, mortgagee
Henry Anson Nutt, nephew
Charles Nutt, nephew
John Joseph Blake, adopted nephew
John Bradby Blake, brother, deceased
Henry Hinde Pelly, esquire, brother in law, executor
Mary See
Mary Nutt, step-niece
George Anson Nutt, esquire, brother in law
Catherine Arabella Browne, god daughter
Jeremiah Flack
Ellen Flack
Edmund Robinson, witness
Chris Lee, witness

Transcriber: Elizabeth Kipp
Recorded: 27 March 2014
Source: The National Archives, PROB 11/1439/159
Testator: Arabella Blake, spinster
Place: Upton, Essex, England
Type of Record: Will
Date of document: 13 May 1805, probated 5 Mar 1806
Condition: 19th century English, legible copy

[Margin]: Arabella
[Margin]: Blake

1    In the Name of God Amen
2    I Arabella Blake of Upton in the County of
3    Essex Spinster being of sound Mind Memory and
4    Understanding do make this my last Will and
5    Testament in manner following I direct that all
6    my just debts and Funeral Expences shall be fully
7    paid and satisfied and subject thereto I dispose of
8    my Estate as follows I Give unto my dear Sister
9    Sally Hitchen Pelly the Capital Sum of Three
10    hundred pounds Old South Sea Annuities standing
11    in my Name I give unto my Nephew and
12    Godson Charles Pelly the Capital Sum of One
13    Thousand pounds like Old South Sea Annuities
14    I Give to my Niece Mary Harrison Wife of
15    Benjamin Harrison Esquire the Sum of One
16    hundred pounds four pounds per Cent Bank Ann[uiti]es
17    standing in my Name I Give unto my Nephew
18    John Henry Pelly the like Sum of One hundred
19    pounds four per Cent Bank Annuities I give
    [Page 2]
20    to my Nephew Francis Pelly the like Sum of
21    One hundred pounds four per Cent Bank Annuities
22    I give to my Nephew Raymond Pelly the like Sum
23    of One hundred pounds four per Cent Bank Annuities
24    I Give to my dear Sister Mary Tymewell Nutt One
25    Thousand pounds now lent on Mortgage to Mrs
26    Joan Dearing of Canterbury also the Capital sum of
27    One Thousand pounds East India Stock now standing
28    in my Name also the Capital Sum of One
29    thousand pounds four per Cent Bank Annuity
30    I Give to my Nephew Henry Anson Nutt and
31    Charles Nutt each the Capital Sum of One
32    hundred pounds four pounds per Cent Bank
33    Annuities to be transferred to them respectively on
34    their respectively attaining the age of twenty one
35    years I Give to John Joseph Blake the adopted
36    Son of my late Brother John Bradby Blake the
37    Capital Sum of One Thousand pounds three pounds
38    per Cent deducted Bank Annuities and Three
39    hundred pounds three per Cent Consolidated Bank
40    Annuities part of the like Bank Annuities
41    standing in my Name and also the Sum of Thirty
42    Guineas I Give unto my Brother in Law Henry
43    Hinde Pelly Esq[uie]r the Capital Sum of Five hundred
44    pounds four pounds per Cent Bank Annuities upon
45    Trust that he or his Executors or Administrators
46    do and shall pay the dividends and Interest
47    thereof unto Mary See of Brompton in the said
48    County of Middlesex Spinster for her Life and after
49    her decease do and shall transfer the same unto
50    the person or persons who for the time being shall
51    be entitled to the Residue of my Estate I Give
52    to the said Mary See the Sum of Thirty
53    Guineas I Give to Mary Nutt the daughter of
54    my said Brother in Law George Anson Nutt
55    Esq[uie]r by his former Wife One hundred pounds of
56    like old South Sea Annuities I Give to my God
57    daughter Catharine Arabella Browne One hundred
58    pounds like old South Sea Annuities I Give
`    my late Faithful Servant Jeremiah Flack Thirty
60    Guineas and to Ellen his Wife Twenty Guineas
61    and as a further Testimony of my regard for
62    the said Ellen Flack I Give her the Sum of
63    Two hundred pounds like three pounds per Cent
64    Consolidated Bank Annuities I Give to my said
65    Brother in Law George Anson Nutt Thirty
66    Guineas I Give to my Brother in Law Henry
67    Hinde Pelly one hundred pounds for the Trouble
68    he will have in the execution of this my Will
69    and the Trusts hereby reposed in him as to all
70    my household Goods Plate Linen China Books
71    and all other my Estate and Effects whatsoever
72    I Give and bequeath the same unto my said
    [Page 3]
73    Sister Mary Tymewell Nutt her Executors Admors
74    and Assigns and my Will is and I do hereby declare
75    that the said several Bequests hereinbefore given
76    by me to my said Sister Mary Tymewell Nutt is
77    given to her for her respective sole and separate
78    use and benefit and I direct that the same shall
79    be transferred and paid to her or to such person or
80    persons as she shall by any routing appoint and
81    that the same shall not be subject or liable to
82    the debts Controul Contract Engagements or any
83    Intermeddling of her present or any future
84    husband and for this purpose I direct that the
85    separate Receipt of my said Sister Mary Tymewell
86    Nutt or the person or persons whom notwithstanding
87    her Coverture she shall appoint to receive the
88    same shall be a good and sufficient discharge to
89    my Executor and my Will further is that my
90    Executor and Trustee his Executors and Admors shall
91    and may from time to time by and out of the
92    Monies which shall come to his hands by
93    virtue of this my Will deduct retain and reimburse
94    himself all Costs Charges and Expences which he
95    shall sustain in and about the execution of this my
96    Will and that he or they shall not be charged
97    or chargeable with more Money than shall
98    actually come to his or their hands Nor for any
99    Loss or Misfortune that shall happen to the said
100    Real Monies and premises unless the same shall
101    happen therunder his or their own wilful neglect and
102    I do hereby appoint the said Henry Hinde Pelly
103    sole Executor of this my Will and do hereby
104    revoke all former Will and Codicils by me made
105    and do declare this only to be my last Will and
106    Testament In Witness whereof I the said Arabella
107    Blake have to this my last Will and Testament
108    set my hand and Seal this thirteenth of May one
109    thousand eight hundred and Five Arabella Blake
110    Signed Sealed published and declared by the said
111    Arabella Blake as and for her last Will and Testament
112    in the presence of us who in her presence at her request
113    and in the presence of each other have hereunto
114    subscribed our Names as Witnesses Edm Robinson
115    Chris Lee Lincolns Inn
116    The Will was proved at London on the
117    Fifth day of March in the year of our Lord one
118    thousand eight hundred and six before the
119    worshipful Herbert Jenner doctor of Laws and
120    Surrogate of The Right honorable Sir William
121    Wynne Knight doctor of Laws Masterkeeper or
122    Commissary of the prerogative Court of Canterbury
    [Page 4]
123    lawfully constituted by the oath of Henry Huit
124    Pelly Esquire the sole Executor named in the
125    said Will to whom admon was granted of all and
126    Singular the Goods Chattels and Credits of the deceased
127    he having been first sworn duly to administer

Sensationalism used as a means of selling books

My information placed in my blog is there for every genealogist to use if it fits into your line of research. Lately I have blogged primarily on the Blake family - one of my one name studies with the Guild of one name studies.

Another one of my one name studies is the Pincombe family - my mother's maiden name. This family has had its share of misfortune through the centuries in one way or another but I have refrained from reporting on it simply because it doesn't add to the genealogy of the family. They are just simply misfortunes that can occur in a family.

I have a comment on one of my blogs and an email from an individual who has decided to write a book about one of the descendants of William Pincombe and Maria Torrington. A number of the members of this family did go to Australia and this particular event occurred in Australia.

A picture of my 2x great grandfather is available on the internet (BIFHSGO site in particular is likely the one that was used to acquire the image) and was sent back to me in an email querying who this person was and how he was related to the individual about whom the story is being written. I have responded explaining the interconnection but also refusing permission to use this picture (in a publication) of my ancestor which had been placed on the internet to make it available for Pincombe researchers worldwide working on their personal family trees. Abusing this type of publication could result in people not being willing to publicly share information.

It is a pity to have one's information utilized in a book written to sensationalize an event and as far as I can tell from the writings I have received from the author there is no proof of the accusations directed at this individual from a medical standpoint. No doctor's certificate appears to accompany the claim.

I will keep you informed of the progress of this particular item. Using a family's misfortune to sell books is something that I have not yet had to deal with in my free dissemination of information. I had received this information from a family member in Australia but did not blog on it as it does not add to knowledge of the families' genealogy. Plus I do not write sensational blogs to attract readers; my work is original documents and commenting on them as I see fit to add to my studies and, if it so happens, to make the information available to other like minded family researchers.

Will of Sir Francis Blake, Baronet, Twisell Castle, Durham - The National Archives PROB 11/1656/302, probated 9 May 1822

An interesting will for Sir Francis Blake 2nd Baronet of Twisel Castle formerly in Durham and now in Northumberland.

The father of the testator was the first Sir Francis Blake Baronet of Twizell Castle. The testator’s father was the grandson of Sir Francis Blake, Knight of Cogges, Oxfordshire. Sir Francis of Cogges was married to Catherine Browne and they had three children Eleanor married to Elisha Briscoe (this family is mentioned in her brother William’s will blogged earlier), William whose will was blogged earlier and a hypertext link is below, and Francis married to Eleanor Carr (this couple had seven daughters and it was their third daughter Sarah who married into the Blake family of Menlough Ireland and the Blake family at Twizel Castle is descendant of this union. William Blake’s will was blogged earlier as mentioned:

http://kippeeb.blogspot.ca/2012/04/will-of-william-blake-of-coggs.html

William does mention his brother Sir Francis Blake in this will as well as the Briscoe family.

Sir Francis and his wife Eleanor acquired Twizell Castle around 1685; he was the son of Sarah Blake (daughter of Sir Francis Blake of Cogges) and Robert Blake (third son of Thomas Blake of Menlough Ireland).

Looking at the Menlough Blake family, Thomas Blake, Mayor of Galway in 1545 and 1562, was the third son of Valentine Blake who was descendant of the Renvyle, Galway Blake family. Valentine Blake married second Eveline Lynch and Thomas was their second son (but the fourth son of Valentine). Valentine was the eldest son of John Blake, burgess of Galway (John was married to Juliana French). John was the son of Henry Blake (junior) (and he was the eldest and only child of his first marriage). Henry was the son of John (Oge) Blake, burgess of Galway (his wife’s first name was Margaret). This John was the second son of Henry Blake (senior). Henry Blake (senior) was the eldest son of Walter Blake, burgess of Galway. Walter Blake was the eldest son of Richard Caddell aka Blake and his wife Eveline.

Moving backwards in the Blake family of Cogges, Sir Francis of Cogges, grandfather of the first Francis Blake, Baronet of Twizell Castle, was the son of Sir Francis Blake of Cogges married to Catherine Browne. This Francis was the fifth child (4th son) of Thomas Blake and Eleanor Hall who lived initially at Eastontown near Andover but moved to London. Thomas’ parents were John Blake and Margaret Blake. By the Swindon and Wiltshire Blake Pedigree Chart, John is said to be the son of William Blake and Avis Ripley and Margaret the daughter of William Blake. I have discussed this family a number of times including the post on the will of William Blake above. I need to contact the family that inherited the paperwork for this particular pedigree chart to see if I could obtain copies of some of the documentation used. Since this is personal family property, I can quite understand if I am unable to do that but it would be interesting to discover evidence that William Blake (father of John) was a son of Roger Blake and Mary Baynard. Roger, in his will, mentions only his eldest son and his youngest daughter. Although William is not mentioned on the Visitation which does tend to give credence to the idea that he was not a member of this family; it is also not unusual to find children left off.

Enjoy the will, it is fascinating seeing the Blake family of Ireland coming together with the Blake family of England which is known to have Hampshire/Wiltshire roots. This Blake family eventually daughtered out although the Blake surname was taken on at least once as per the instructions of the will.

Names mentioned in the will:

Sir Francis Blake, baronet, testator
Earl Grey of Howick, trustee
William Alder aka William Rowland of Horncliffe, trustee
Dame Elizabeth Blake, his wife
Francis Blake, his son
Robert Dudley Blake, his son
William Blake, his son
Elizabeth Blake, his daughter
Sarah Blake, his daughter, deceased
Isabella Blake, his daughter
Eleanor Ann Blake Stag, his daughter
Bethel Earnshaw Stag, his son in law
Andrew Lambert, witness
J Lambert, witness
John Burrell, witness
Matthew Culley, purchaser
Isabel Ayton, mother of testator, deceased
Isabella Blake, sister of testator, deceased
Doctor Hewitt, legator
James Darling, witness
Matthew Hall, witness
John Renton, Edinburgh, Writer to the testator, witness
Joseph Grant, Edinburgh, Writer to the testator, witness
Hen Sprot, Edinburgh, apprentice to John Renton, witness
Tho[ma]s Wright, Louth house, Edinburgh, witness
Robt Strachan, Edinburgh, Writer to the testator, witness
Jas J Darling, Edinburgh, Apprentice to Robt Strachan, witness

Helen Blake, widow, is mentioned in the final probate as taking Admon for the will.

Eleanor Ann and Bethel Earnshaw Stagg had two children as located in Family Search:

Francis Douglas Bethel Stag (born 18 Nov 1807 and baptized 25 Jul 1812 at Norham, Northumberland) and Eleanor Anne Stag (born 14 Dec 1805 and baptized 5 May 1806 at Morpeth, Northumberland)

The Law Times carries a lengthy article describing the arguments back and forth with regard to the settlement of this estate and is the cause of the prolonged time between the death of Sir Francis, the present testator, and the Admon being given to Helen Blake, widow.

The Law Times, November 8, 1873, Volume XXIX, N.S., pages 331-345.

COURT OF EXCHEQUER AND
EXCHEQUER CHAMBER.

Reported by T. W. Saunders and H. Leigh, Esqrs., Barristers-at-Law.

April 29, May 1 and 2, and June 6, 1872; Feb. 15, 17, 18 and April 17, 1873.

Allgood And Others V. Blake; Roach v. The Same; Clennell v. the Same; Reed v The Same; Allgood And Others v F. Blake.

Will—Limitations of estates tail—Ultimate limitation "for default of such issue to all and every other the issue of my body"—Meaning of words "issue of my body," "all and every," "other the issue"— Words of exclusion or completion— General intent—Construction.

At the dates, respectively, of his will and death a testator had living one son and one daughter. The son had then living two sons, F. and R., and three daughters, E., J., and S. The testator had also then living four grandchildren, issue of a deceased daughter. By his will he devised his real estates to his son for life, with remainder to his said son's eldest son F. for life, with remainder to the first and other sons of F. successively in tail male; and, for default of such issue, to R., his son's second son, for life, with remainder to R.'s first and other sons successively in tail male; and for default of such issue to the third, fourth, and other sons of his son thereafter to be born, successively in tail male; and in default of such issue, to his daughter for life, with remainder to her first and other sons successively in tail male; and for default of such issue to his granddaughter E. for life, with remainder to her first and other sons successively in tail male; and for default of such issue, to his granddaughter J. for life, with remainder to her first and other sons successively in tail male; and for default of such issue to his granddaughter S. for life, with remainder to her first and other sons successively in tail male; and for default of such issue, to all and every the fourth, fifth, and every other daughter and daughters of his son successively and in remainder one after another, and the heirs male of their bodies; "and for default of such issue, to the use and behoof of All And Every Other the issue of my body lawfully to be begotten; and for default of such issue, to the use and behoof of my own right heirs for ever."

In his will the testator expressed a wish that his estates should be preserved in the hands of one person, and should not be dispersed; and he directed that any female who might inherit thereunder should (if married), with her husband, assume the testator's name and arms only, or forfeit the estates; and he directed that an iron muniment chest should "go to the person entitled to the real estates from time to time."

F., the eldest son of the testator's son, having come into possession of the estates, executed a disentailing deed, and devised the estates to the defendant for life, with remainder to his sons successively in tail male.

Actions of ejectment were brought (1) by the plaintiffs in the first and fifth actions, who claimed as issue of the body of the testator, as joint tenants per capita, at the period of the estates vesting in possession; (2) by the plaintiff in the second action, who claimed as heiress in tail general of the testator, at the same period; (3) by the plaintiff in the third action, who claimed as the heir of the survivor of all the issue in tail of the testator living at his death (other than those included in the particular limitations); and (4) by the plaintiff in the fourth action, who claimed as heir in tail of the testator at his death (those being excluded who came within the particular limitations); and it was held by the Court of Exchequer (Kelly, C. B. and Martin, Bramwell and Cleasby, BB.) that by virtue of the penultimate limitation in the will, there was at the testator's death a vested remainder in the heirs of his body in tail general, to which his son then became entitled; and that this remainder descended to F. who, as he was also tenant for life in possession, was qualified to execute a disentailing deed, so as to acquire the absolute disposition of the property, subject to all the estates preceding such penultimate limitation; and that the defendant, claiming under such deed, and all the previous estates having expired, had the title, and was consequently entitled to the judgment of the court; the judgment being founded upon the following conclusions (Bramwell, B., dissenting from the fourth conclusion only):

First, the words "issue of my body" in the penultimate limitation are to be read in the same sense as "heirs of my body."

Secondly, having regard to the context and the whole will, the devise to "the issue of my body" cannot be read as having the effect which it might have in an ordinary will, taken by itself, of giving the estate per capita in joint tenancy amongst all who came within the class at the time of vesting in possession.

Thirdly, the words "all and every" do not import that " all and every" are to take at the same time, but are well satisfied by all taking in succession.

Fourthly, the word "other" is not to be read in the strict sense of intending to exclude those coming within the class who have been provided for before, and are supposed to have failed, but rather to complete a provision for all the issue, so as to make the estates go over, by force of the words "in default of such issue" at the end of the penultimate limitation, only upon failure of all the issue of the testator.

Mandeville's Case (Co. Litt. 266) discussed, commented on, and distinguished; King v. Melling (1 Vent. 214-225; Pollexfen, 101); James v. Richardson (Pollexfen, 457; 1 Vent. 334); Burchett v. Durdant (2 Vent. 311), approved and followed.

Error having been brought upon the above judgment to the Court of Exchequer Chamber, it was Held by that Court (Blackburn, Keating, Mellor, Grove, and Honyman, JJ.) that the judgment of the court below was right and must be affirmed.

These were special cases stated in five several actions of ejectment, brought by the several plaintiffs respectively to recover fourteen forty-eighth parts of a farm and lands called High Letham, or Latham, in Berwick-upon-Tweed, and for the purpose of determining the right to the possession of certain landed estates of considerable value in the counties of Northumberland and Durham, and the county of the borough and town of Berwick-upon-Tweed respectively, formerly belonging to the late Sir Francis Blake, the first baronet, of Twizell Castle, in the county of Durham, who died in the year 1780, upon the construction of the devise of which estates in whose will, dated in Jan. 1780, the question in dispute between the parties arose and depended.

The following is a statement of so much of the special case as is material and necessary for the purpose of this report:

Sir Francis Blake (the first baronet) was, at the dates respectively of his will, and of his death hereinafter mentioned, seised in fee of the farm and lands in question, and also of large freehold estates in the counties of Durham and Northumberland, and also of the reversion of several estates in the county of Durham, expectant upon the failure of issue male of his eldest son, Francis Blake (the second baronet).

At the date of his will the first baronet had two children living, namely, a son, Francis Blake (the second baronet), and an only surviving daughter, Isabella Blake. The said Francis Blake, the son, had at that time five children living, viz., Francis Blake (the third baronet), Robert Dudley Blake, Elizabeth Blake, Isabella Blake, and Sarah Blake.

By his will, dated 18th March 1780, the first baronet, after charging all his mansions, castles, lands, and hereditaments, etc. with certain payments, which were afterwards duly made, and creating a term of 1000 years therein upon certain trusts, which were afterwards performed and satisfied, devised all his hereditaments, etc, to his son Francis (the second baronet), for his life, with remainder to trustees for the second baronet's life, to preserve contingent remainders, with remainder to the use of Francis (the third baronet), eldest son of the second baronet, for his life, with remainder to the uso of his first and all and every other sons successively in tail male; and for default of such issue to the use of Robert Dudley Blake (second son of the second baronet ), for his life, with remainder to the use of his first and other sons successively in tail male; and for default of such issue to the use of the third and all and every other sons of the second baronet thereafter to be born successively in tail male; and for default of such issue to Isabella Blake, the testator's daughter, for her life, with remainder to the use of her first and all and every other sons successively in tail male; and for default of such issue to the use of Elizabeth Blake (eldest daughter of the second baronet), for her life, with remainder to the use of her first and all and every other sons, successively in tail male; and for default of such issue to the use of Isabella Blake (the second daughter of the second baronet) for her life, with remainder to the use of her first and all and every other sons successively in tail male; and for default of such issue to the use of Sarah Blake (the third daughter of the second baronet) for her life, with remainder to the use of her first and all and every other sons successively in tail male; and for default of such issue to the use of the fourth and all and every other the daughters of the second baronet successively for life, with remainder to the heirs male of their bodies respectively; "and for default of such issue to the use and behoof of All And Every Other The Issue of my body lawfully to be begotten; and for default of such issue to the use and behoof of my own right heirs for ever."

The testator also, after reciting that the reversion in fee of the several estates in the county of Durham was vested in him and his heirs upon failure of the male line of the second baronet, further devised all and every the said estates, to which he was so entitled in reversion, in case of failure of the male line of the second baronet, to the said trustees and their heirs to, for, upon, and subject to such and so many of the uses, etc, in the said will before expressed and declared concerning his said other real estates by his said will before devised on failure of issue male of the said second baronet, as "should then be in existence undetermined or capable of taking effect." Immediately after the last-mentioned devise, the words next following occurred in the said will, "and thus having at least expressed a very natural desire to continue my name and property upon a respectable footing, and to prevent, as far as may be, the dispersion of my estates amongst several persons, and to keep up my name and family in one person, I do hope that the person into whose hands my estates shall come, whether by virtue of this my will, or by means of fines or recoveries, or other acts in the law, defeating the uses and limitations of the present entails, or otherwise howsoever, will be equally ready to adopt the plan for the purposes aforesaid." The will also contained a proviso, making it incumbent upon the females in the line of descent, when married, to retain, and on their husbands to assume and bear the name and arms of Blake upon their respectively coming into possession of the estates, under the penalty, in case of neglecting or refusing to do so, of forfeiting the estates to the person next in remainder. And there was also a clause by which the testator expressed his wish that an iron muniment chest should always go to the person entitled to his real estates from time to time.

On the death of the testator, on the 29th March 1780, his son Francis (the second baronet) succeeded to the title and estates, and entered into and continued in possession thereof, including the above-mentioned farm and estates, until the 2nd June 1818, when he died, leaving surviving Francis, the third baronet, his eldest son, and heir-at-law, Robert Dudley Blake, and William Blake, his younger sons, and Eleanor Ann Blake, his daughter, who was born subsequently to the death of tho first baronet, and who had intermarried with Bethel Earnshaw Stag, him surviving.

Isabella Blake, the first baronet's eldest daughter, and Elizabeth, Isabella, and Sarah, daughters of the second baronet, all died unmarried in the second baronet's lifetime. Upon the second Baronet's death, his son, the third baronet, succeeded to the title and estates, and entered into and continued in possession thereof, including the said farm aud lands, until his death, on the 3rd Aug. 1860.

In Jan. 1834 the third baronet executed indentures of lease and release, whereby the estate tail in the said estates and hereditaments vested in him by the said first baronet's will, expectant on the failure or determination of the estates in tail male limited to the use of his sons, and the death and failure of issue male of his brothers Robert Dudley and William, and his sister Eleanor Ann respectively, and all reversions and remainders thereupon expectant or depending, were barred and extinguished; and the same estates were thereby settled to the use of the said third baronet, for his life, and from and after his decease (but subject, and without prejudice, to the uses and estates in tail male by the said first baronet's will limited to the sons of the said third baronet, and to the said Robert Dudley Blake, William Blake, and Eleanor Ann Stag, and the heirs male of their bodies respectively), to the use of the right heirs of the said third baronet for ever.

Robert Dudley Blake, William Blake, and Eleanor Ann Stag were living at the date of the said indenture, but did not consent to the execution thereof. The third baronet, on the 15th Oct. 1845, made his will, whereby, after reciting that, under the will of the first baronet and by other assurances, he was entitled to the remainder in fee of and in tho said estates (including the said farm lands in question), he devised the same (subject to the estates limited by the said first baronet's will) to the use of the defendant in the first four actions for life, with remainder to his sons, successively in tail male.

Robert Dudley Blake, and William Blake, the brothers of the third baronet, died without issue in his lifetime, and upon tho third baronet's death his sister, Eleanor Ann Stag, assumed the name and arms of Blake, and entered into and continued in possession of the said estates until her death on the 12th March 1869. She died without issue male, but leaving surviving a daughter, Eleanor Ann, wife of Charles Roach, and the plaintiff in the second of the above actions, and who is heiress-at-law to the first, second, and third baronets. Besides his daughter Isabella, named in his will, the first baronet had another daughter, Sarah, who died before the said will was made. She married one Christopher Reed, and left many children.

The question for the opinion of the court, which was to have power to draw inferences of fact, was whether the plaintiffs, in any and which of the said actions respectively, were entitled to the possession of the whole, or of any and what share or shares, of the said property.

The special cases in each o£ the five actions were similar, except that the plaintiffs in the four first actions were different parties, and the defendant in the fifth action and the property therein sought to be recovered were different from the defendant and property in the first four actions. The interests of all the parties, however, being closely allied, and the points in dispute in the several actions being almost identical, it was arranged that the arguments in all the cases should be heard together. Tho plaintiffs in the first and fifth of the above actions, fourteen in number, were the same persons, and were great- grandchildren and great great-grandchildren respectively of the first baronet, being descendants from his daughter Sarah, who married Christopher Reed, and died in her father's lifetime and before the date of his will. They claimed the property as joint tenants, under the penultimate limitation in the will, as being among the issue of the testator's body in the line of the said Sarah Reed, and they contended that the property was given, under that limitation, per capita, and all who came within the class at the date of the death of Mrs. Eleanor Anne Stag, in 1869.

The plaintiff in the second action was Eleanor Anne Roach, a great- grandaughter of the first baronet, and, as before mentioned, the only surviving child of Eleanor Anne Stag, the youngest and last surviving child of the second baronet, and the last tenant in tail male under the specific limitations of the will. She was the heir in tail general of the testator's body at the time when the penultimate limitation took effect in possession, and she claimed as under a remainder contingent as to the person to take under it until the happening of the event.

The plaintiff in the third action was Percival Fenwick Clennell, a great-grandson of the first baronet, and a son of Sarah Clennell, formerly Sarah Reed, the youngest daughter of the before-mentioned Sarah Reed, formerly Sarah Blake.

His mother was the survivor of all the issue of the testator living at his death (other than those included in the particular limitation), and he claimed either the entirety as her heir and the survivor of such issue, or his share in case the other issue were allowed to come into the estates.

The plaintiff in the fourth action was Francis Reed, another great- grandson of the first baronet, and the second son of John Reed, the eldest son of the before-mentioned Sarah Reed, formerly Sarah Blake. He claimed the entirety of the property as heir in tail of the testator at his death, all those being excluded who came within the particular limitations, the distinction between his claim and Mrs. Roach's being that he claimed as upon a remainder vested at the death of the testator, the remainder in Mrs. Roach's case being contingent, as above mentioned.

The defendant in the first four actions claimed the property, the subject of dispute therein, as devisee for life, with remainder to his first and other sons in tail male under the before-mentioned will of the third baronet.

The defendant in the fifth action claimed the estates, the subject of dispute therein (and which were other and different estates from those claimed in the four other actions), as eldest son and heir at law of his father, who was devisee for life of the said estates, with remainder to his first and other Sons in tail male, under the said third baronet's will, and who died intestate on tho 14th of July, 1861.

The following counsel appeared for the various parties in tho several actions, and tho following cases and authorities were cited and referred to on the hearing of the arguments in the Court of Exchequer, wherefrom and from the elaborate considered judgment of the court, the scope and nature of the arguments urged on each side may be sufficiently gathered.

Sir R. Palmer, Q.C. (with him were Manisty, Q.C., Waley, and Gainsford Bruce) for the several plaintiffs in the first and fifth actions, cited:

Lewis on Perpetuities, 653, 61; 2 Co. Litt., by Hargrave and Butler, 266, 272a, note 1, s. 5;
Heasman v Pearce (V.C.M.), 24 L. T. Rep. N.S. 864; L. Rep. 11 Esq. Cas. 522; 40 L. J. 258, Ch.; s. c. on appeal to the L. JJ., 26 L. T. Rep. N.S. 299; 41 L. J. 705, Ch.; L. Rep. 7 Ch. App. 275;      
Prior on Issue, Book I., 6, 12, 26;
Lees v Mosley, 1 Yo. and Col. 589; 5 L. J., N. S., 78 Ex. Eq. (per Alderson B., delivering the judgment of the court at p. 606 of 1 Yo. and Col., and p. 82 of 5 L. J.);
Nicholls v Sheffield and others, 2 Bro. Ch. Cas. Ex.; Eden 215;
Lewis dem. Ormond v Waters and another, 6 East. 335, at p. 346;
Surtees v Surtees, 25 L. T. Rep. N S. 288; L. Rep. 12 E1. Cas. 400;
Davenport v Henbury, 3 Ves. Jun. 257;
Freeman v Parsley, 3 Ibid. 421;
Bernard v Mountague, 1 Mer. 422;
Ranelagh v Ranelagh, 12 Beav. 200; 19 L. J. 39, Ch.;
Dalzell v Welch, 2 Sim. 319;
Cooper v Pitcher, 4 Hare 485;
Greene v Ward, 1 Russ. 262;
Lee v Busk, 14 Beav. 459; 22 L. J. 97, Ch.;
Cook v Cook, 2 Vern. 545;
Rowland v Morgan, 2 Phil. Ch., Rep. 764; 18 L. J., N. S., 78, Ch.;
Knight and others v Selby, 3 M. and G. 92, ; 10 L. J., N. S., 263, C. P.;
Whitelock and others v Heddon and others, 1 B. and P. 243;
Atkinson v Holtby (in the House of Lords), 10 H. L. Cas. 313; 8 L. T. Rep. N. S. 583; 32 L. J. 735, Ch.;
De Windt v De Windt (in the House of Lords), 14 L. T. Rep. N. S. 529; L. Rep. 1 Eng. and Ir. App. 87; 35 L. J. 332, Ch.;
Clavering v Ellison, 3 Drew 451; 25 L. J. 274, Ch.;
Egerton v Earl Brownlow and others (in the House of Lords), 4 H. L. Cas. 1; 23 L. J. 248,k Ch.;
Vernon and others v Wright and others, 7 H. L. Cas. 35; 38 L. J. 198, Ch.;
Fearne's Contingent Remainders, 80, 84;
1 Jarman on Wills, 3rd edit., p. 777; 2 Ibid. pp. 55, 56, 89, 91, 143, 758;

He commented also on Mandeville's case (Co Litt 26 b), (relied on by the defendants) and the anomalous character of the doctrine there as pointed out by Butler in his notes to Fearne's Contingent Remainders (ubi sup.) The Solicitor General (Sir G. Jessel QC) with him were W.H. Bagshaw and Wallis) for Eleanor A Roach the plaintiff in the second action cited

Co. Litt. by (Hargrave and Butler), 19a 20b 22a 24b 25a 25b 26b and note to 24b
Fearne on Contingent Remainders p 180 et seq 1 Crn. Dig. p 64, pl. 82, 83
Whitelocke v Heddon 1 B and P. 243
Bristowe, Q.C. (with him was Harrison Dalton), for Percival Fenwick Clennell, the plaintiff in the third action cited

White v Coram 3 K. and J. 652
Morgan v Britten 41 L. J. 70, Ch.; L. Rep 13 Eq. Cas. 28;
1 Jarman on Wills 3rd edit 758

Pollock QC (with him was Day QC), for Francis Reed the plaintiff in the fourth action cited:

Whitelocke v Heddon 1 B and P 243
Grey and others v Pearson and another (in House of Lords) 6 HL Cas 61 at p 68; 26 L. J. 473 Ch.;
Lees v Mosley 1 Yo and Col 589; 5 LJ N S 78 Ex Eq
Doe dem Dodson v Grew and others, Wilmot's notes 272; 2 Wils 322;
Roddy and others v Fitzgerald 6 HL Cas 823;
Hannaford v Hannaford 25 LT Rep NS 820; L Rep 7 QB 116; 41 LJ 63 QB;
Doe dem Blandford and others v Applin 4 TR 82;
Doe dem Cock v Cooper 1 East 299;
2 Jarman on Wills 3rd edit p 77

Sir J. Karslake QC and C Hall (with them was Kemplay QC) for the defendant in the first four actions and

Joshua Williams QC (with him were Trevelyan and C Browne) for the defendant in the fifth action (the interests of both defendants being identical) cited:

Abbott and others v Middleton and others 7 H of L Cas 68 (per Lord Wensleydale at pp 113 114); 28 LJ 110 Chan at p 114;
Jenkins v Hughes (in tho House of Lords) 8 HL Cas 571 (per Lord Cranworth at p 590; 7 L T Rep NS 106; 30 LJ 870 Ch;
Byng and others v Byng and another 10 HL Cas 171 (per Lord Cranworth p 181) 7 LT Rep NS 1; 31 LJ 476 Ch ;
Wild's case 6 Co Rep 17;
The Earl of Scarborough v Doe dem Savile (in error from the Queen's Bench) 3 A and E 897; 6 LJNS 270 Ex ;
Stanley v Lennard 1 Eden's Ch Cas 87; 1 Amb 355;
The Earl of Tyrone v The Marquis of Waterford (before Lord Campbell L C and the L JJ); 2 LT Rep NS 307; 1 De GF and J 613; LJ 486 Ch;
Mandeville's case Co Litt 26b;

Wright v Vernon 2 Drew 439 (at pp 455-457); 23 LJ 881 Ch; s c on appeal to the House of Lords, Vernon v Wright 7 HL Cas 35; 28 LJ 198 Ch ;
King v Melling 1 Ventris 214, 225; Pollexfen 101; 3 Keble 42, 52, 95; 2 Lev 58 ; 1 Salk 224 ;
Roddy and others v Fitzgerald 6 H L Cas 823 (per Lord Cranworth p 871 et seq);
Jordan v Adams (in error from the CP) 4 L T Rep NS 575; 30 L J 161, C P ; 9 CB NS 483 (per Cockbnrn CJ p 501);
Woodhouse v Herrick 1 Kay and J 352; 24 LJ 649 Ch ;
Montgomery v Montgomery 3 Jo and Lat 47; 8 Ir Eq Rep 740 ;
Crozier v Crozier 3 Dru and War 373;
Doe d Gallini v Gallini 5 B and Ad 621; 3 LJNS 71 KB; affirmed in error 3 A and E 340; 4 LJ NS 337 Ex (judgment of Tindal CJ p 352 of 3 A and E);
James v Richardson, Pollexfen, 457, 461; 1 Vent 334 ;
Burchett v Durdant 2 Ventr 311; 1 Eq Cas Abr 214 pl 11;
Pugh and another v Goodtisle (in error) 3 Bro Parl Cas. 454;
Parr v Swindels 4 Russ 283; 6 LJ 99 Ch ;
Kavanagh v Morland Kay 16; 23 LJ 41 Ch;
Taylor and Wife v Bayer Cro Eliz 742 ;
Broughton v Langley 2 Lord Ryan 873 ;
Petty v Goddard, Bridgm Rep by Bannister p 35;
Lethicullier v Tracey 3 Atk 728; 774; 784, 793; Amb 204, 220; 3 Ken 40;
Greene v Ward 1 Ross 262;
Doe d Bean v Halley 8 TE 5;
Doe d Cock v Cooper 1 East 229 ;
Roe dem Dodson v Grew 2 Wilson 322; Wilmot's Notes 272 ;
Doe d Blandford v Applin 4 TR 82 ;
2 Jarman on Wills 3rd edit pp 55, 146, 400, 415 ;
Hayes on Limitation in Devises 1, 18, 21, 28 ;
Hayes's Principles of Exposition (Table iii);
Fearne on Contingent Remainders pp 80 to 84, 180, 526;
2 Powell on Devises 3rd edit by Jarman 596;
2 Preston on Estates 506-7;
Plowden 29;
1 Hargr Coll J 403;
Hargrave's Tracts 565 .

Sir R Palmer QC and Pollock QC replied
Cur adv vult

June 6 1872 The court (Kelly CB and Martin Bramwell and Cleasby, BB.) having taken time to consider, the following judgments were now delivered :—

Cleasby, B.—The first of the above five actions—Allgood and others v. Blake—was brought to recover the possession of fourteen forty-eighth parts of a farm, messuage, and lands, called High Letham, or High Latham, in the county of the borough and town of Berwick-upon-Tweed. The question for consideration is the proper construction of a clause in the will of Sir Francis Blake, which was executed in January 1780. The testator died in the March following. At the time of making the will he had living a son, Francis, and a daughter, Isabella; another daughter, Sarah, had married a person of the name of Christopher Reed, and died in the year 1771, leaving several children, male and female, surviving. His (the testator's) son, Francis, had living, at the time of making the will, two sons, Francis and Robert Dudley, and three daughters, Elizabeth, Isabella, and Sarah. All the testator's descendants appear in the pedigree annexed to the case, with dates of birth, marriage, and death. The will is technically framed, and all the life estates are followed by a devise to trustees to preserve contingent remainders. Bearing that in mind, its substance may be stated, for the purpose of tho present question, as follows:—After charging all and singular his manors, messuages, castle, lands, hereditaments, and estates with certain payments, which are to be taken as having been duly made, and creating a term of 1000 years upon certain trusts which have been satisfied, he devised his said hereditaments to his son Francis for life, with remainder to Francis, the eldest son of his son Francis, for life, with remainder to the first and other sons of Francis, the grandson, successively in tail male; and for default of such issue to Robert Dudley Blake, the second son of Francis, the son, for his life, with remainder to his first and other sons successively in tail male; and for default of such issue to the third, fourth, and other sons of the son Francis, thereafter to be born, successively in tail male; and in default of such issue to the testator's daughter, Isabella, for life, with remainder to tho first and other sons of his daughter Isabella successively in tail male; and for default of such issue to his granddaughter Elizabeth, for life, with remainder to her first and other sons successively in tail male; and for default of such issue to the testator's grandaughter Isabella, for life, with remainder to her first and other sons successively in tail male; and for default of such issue to the testator's granddaughter Sarah, for life, with remainder to her first and other sons successively in tail male; and for default of such issue to all and every the fourth, fifth, and other daughter and daughters of Francis the son, successively and in remainder one after another, and the heirs male of their bodies. It should be here noticed that all the limitations including and following that to Isabella, the daughter of the testator (tho first female who comes in), are expressly made subject to a proviso or condition in the will, contained in the name and arms clause, which will be particularly noticed hereafter. The next limitation is the one upon which tho question arises, and is in the following words, "and for default of such issue to the use and behoof of all and every other the issue of my body lawfully to be begotten;" and upon this there immediately follows another limitation, "and for default of such issue to the use and behoof of my own right heirs for ever." The first of these two limitations may be correctly called, as has been done throughout the argument, the penultimate limitation ; and the other one, the ultimate limitation. The particular words "to all and every other the issue of my body," taken by themselves were, it was contended, susceptible of two meanings. They may be taken to signify a distribution, as if the testator had said, "to and among all and every the issue," etc, in which case they would be words of purchase; or they may signify succession, and not distribution, like "heirs of the body," in which case they would be words of limitation, although they might also, in some sense operate as words of purchase, according to Mandeville's case, as will be afterwards pointed out. In considering which of these two senses should be given to the words it was important to examine other parts of the will, to see whether there was any clear general intent of the testator, which could properly be considered as applicable to the construction of the penultimate limitation. And upon the meaning and effect of other parts of the will there was a very full argument before us. In addition to the estates of which the testator was seised in possession, he was seised in reversion, upon the failure of male issue of his son Francis, of certain estates in the county of Durham, and he devised this reversion to such of the uses limited in the will concerning his other estates, upon failure of male issue of his son, as should then be in existence, and capable of taking effect. And after the last mentioned devise, the following clause occurs in the will, "And thus, having at least expressed a very natural desire," etc. [Reads clause] (sup.). Another clause referred to was the clause making it incumbent upon the females in the lines of descent, when married, to take the name and arms of Blake, the language of which was much canvassed, and which was in the following words: "Upon this express condition that they the said several persons above-named, and the several and respective husbands of such of them as shall marry, and their respective sons and issue male, who are to take by virtue of and under the limitations hereinbefore contained, do and shall, when and as they shall respectively come into and be in the actual possession of my said real estates, or any part thereof, by virtue of or under the limitations hereinbefore mentioned and contained, and during such time as they respectively shall be in possession of the same estates and premises, or any part thereof, and for ever thereafter, assume and take upon himself, herself, and themselves respectively, and continue to use the surname of Blake only, and no other surname, and bear the coat of arms of that family, and shall in all deeds, writings, letters, and other instruments of writing, be styled and called by the surname of Blake only, and set and subscribe, and write his, her, and their surnames respectively, Blake only, to all and every such deeds, writings, letters, and other instruments; and that in case such person or persons as aforesaid, shall neglect or refuse so to do, for the space of six calender months next after he, she, or they shall become so entitled to the said estates as aforesaid, the person or persons so neglecting or refusing should not have or take any benefit, estate, or interest, under or by virtue of this my will, of or in the said estates and premises, and that in such case the person who, by virtue of the limitations aforesaid, is to take next in remainder after the person or persons so neglecting or refusing shall enter upon, have, and enjoy all the said estates and premises in as full and beneficial a manner, as if the person or persons so neglecting or refusing was or were actually dead. Provided that such person in remainder, to take by virtue, or in consequence of such neglect or refusal, shall assume and take upon him or her, and continue to use the surname of Blake only, and bear the coat of arms of Blake as aforesaid." And further, the language of the clause, at the latter part of the will relating to the iron chest, or muniment box, was alluded to, in which the testator declares his will to be, that it shall go to the person entitled to his real estates, from time to time. It was contended, on the part of the defendant, that the whole will, taken together, showed in the clearest manner a general intent in the testator that the estate should go to and be enjoyed by one person, in any possible line of descent from him, before the devise to the heirs general could take effect. He relied upon the manner in which the successive life estates, forming separate lines of descent, were specified as far as they possibly could be, and on the words " all and every" of the penultimate limitation itself. Particular stress was laid upon the penultimate limitation being followed by the words "and in default of such issue," and by a devise over in fee; these same words " and in default of such issue" having been used after every other devise of an estate tail to introduce the next limitation. It was said this showed conclusively, at all events, that the penultimate limitation could not have the effect of a devise in fee, as there was a remainder upon it following exactly the same words as all the other remainders in the will; and although, under the will, which was made before the 3lst Dec. 1833, the heirs of tho testator, who take under the ultimate limitation, would take by descent and not as devisees, this makes no difference as to the intended effect of the previous limitations which we are now considering. It will be noticed that every estate tail in the will is followed by the words, "and in default of such issue," and it was said, as those same words followed the penultimate limitation it is reasonable to read them as embracing the same idea, namely, the failure of the estates tail; and it was argued, and we think with great force, that if you once come to tho conclusion that the penultimate limitation operates as a devise in tail, it almost follows that successive estates tail were intended, and not so unusual and inconvenient an arrangement as joint estates tail in any number of persons, especially when the testator intimated so clearly his wish that the estate should not be divided. In answer to the argument that, in a will carefully framed, and in which the estate tail was created by the proper technical words, the penultimate limitation alone contained a devise to "issue," it was pointed out that the frequent repetition of the words " in default of such issue," after each devise in tail, showed that the word " issue " was throughout used as embracing all the heirs of the body. The defendant also relied upon the clause already referred to, in which the testator expressed his wishes as to the conduct to be pursued by his successors; and it was said that if the testator's mind was directed to the time when the limitations in the will should enable those who took the estate to make fresh settlements, and so prevent the dispersion of the property, he must have intended, so far as his own will could do so, to carry this into effect, and the penultimate limitation therefore ought to receive a construction which would carry that into effect. The language of the clause is very comprehensive, for the hope expressed is that the persons into whose hands the estate shall come, whether by virtue of the will or by means of fines and recoveries, shall be ready to adopt his plan for keeping up the name and family in one person; and this includes all who take estates tail, whether under the will or by means of fines and recoveries. The name and arms clause indicated (it was said) distinctly the same intent, and the clause relating to the muniment box was also referred to as not immaterial, and particularly the language of it, namely, that it should go to the person entitled to the estates from time to time. It was contended, on behalf of the plaintiffs, that the object of tho testator was sufficiently carried into effect by the various specific limitations preceding the penultimate one, and that an adequate effect having been given to that intention, it was unnecessary to employ it in construing that limitation, more especially when the construction contended for was contrary to the proper meaning of the words used, and further, that the clause relating to the conduct of his devisees showed what he wished the first and other tenants in tail to do, and had no reference to the multiplying the tenancies in tail. It was also pointed out that the forfeiture, by which the name and arms clause was enforced, was inapplicable to any persons who took under the penultimate clause; and also that the clause relating to the muniment box was of little effect, since it would absolutely vest, being a personal chattel, in the first tenant in tail for want of the intervention of the usual trustees to make it an heirloom. So far as this part of the argument is concerned, we think there does appear, clearly, upon the face of the will, and throughout it, an intent on the part of the testator so to limit the estate as to keep the estates and name and family in one person; and that all the devises and particular limitations are introduced as subordinate to, and for the purpose of carrying into effect, this general intent. And, having adverted to the arguments on both sides, we do not think it necessary to recapitulate them in favour of this conclusion; but we may say, in reference to those on the other side, that the existence of this intent is not negatived by some of the provisions introduced for the purpose of carrying it into effect, being imperfect in their operation. We had brought before us many authorities for the purpose of showing to what extent the courts and the House of Lords had gone in construing particular provisions, so as to carry into effect what has been called the general intent; and how, in some cases, words have been rejected, and a particular intent expressed by them has been sacrificed. Two of the latest authorities have certainly a strong bearing upon the present case, and may well be noticed, Jenkins v. Hughes (8 H. L. Cas. 571; 3 L. T. Rep. N S. 106; 30 L. J. 870, Ch.), and Byng v. Byng (10 H. L. Cas. 171; 7 L. T. Rep. N. S. 1; 31 L. J. 476, Ch.). In the first of these cases there was a clause, corresponding with the clause in the present case, expressing the testator's wish as to the conduct of his successors, and in the second there were clauses corresponding with the name and arms clause, and the clause as to the iron chest. In Jenkins v. Hughes, the ninth clause in the will contained the following words:

"My express will and desire being that my estates do always descend in the male line," (p. 573 of 8 H. I. Cas.) the question being whether Thomas the great nephew of the testator took an estate tail by force of certain words which, taken by themselves, would have a different operation. Lord Cranworth says at p. 592, " But the general emphatic direction contained in the ninth clause seems to me to justify us in holding the true construction of the will to be, that Thomas took an estate in tail male." In the other case of Byng v. Byng, the will contained a name and arms clause, and also a clause directing that Holbein's portrait of Archbishop Cranmer, and other chattels, should go as heir-looms with the estate. The devise was to A. B. and his children. As there were several children born at the time of the devise, the effect of the devise, taken by itself, was to make children a word of purchase, and to make the children take as joint tenants with A. B. According to Wild's case (6 Co. Rep. 17) Lord Cranworth s lauguage in Jenkins v. Hughes at p. 181 of 10 H. L. Cas., is remarkable in its application to the present case; "There are two passages in the will which bring me to the conclusion that the testratrix could not have contemplated a joint tenancy among the niece and her children." He then refers to and reasons upon the name and arms clause, and at the end of the paragraph says, "For these reasons I think that the direction to take the name and arms tends strongly to show an intention to keep the estates in a single line of enjoyment, and not to devise them among an indefinite number of objects." The other passage alluded to is that making the portrait and chattels heir-looms, and he refers to that as suggesting arguments of greater weight than the others. Lord Kingsdown, who says that he had given to the case an anxious consideration, having at first had a different impression, refers (at p. 187 of the same volume) to both the above matters as aiding the construction, and the result was that the word children was held to be a word of limitation. It is not at all necessary, in the present case, to act upon the rule of carrying into effect the general intent to the extent to which it has been acted upon in such cases as Doe dem. Blandford v. Applin (4 Term Rep. 8:2), and Doe dem. Cock v. Cooper (1 East, 220), where a particular provision, clearly expressed, has been rejected; the utmost extent to which, if at all, it need be applied, is in that modified form to which it is limited by Lord Redesdale in the House of Lords in Jesson v. Wrigt (2 Bligh 1), and as approved of by the Court of Queen's Bench in Doe dem. Gallini v. Gallini (5 B. and Ad. 621, affirmed in error, 3 A. and E. 340) namely, "that technical words shall have their legal effect, unless, from subsequent inconsistent words, it is very clear that the testator meant otherwise." And if the words of the penultimate limitation had, by force of certain decisions, acquired technically the sense of a distribution in joint tenancy, we should feel justified in departing from that sense, when so clearly opposed to the intent of the testator, and giving them any other sense which they would fairly bear. In reality, when we are dealing with a will which is one document expressing all the intentions of the testator, and which ought, therefore, to be read as a consistent whole — if a question arises as to the effect of a particular clause, the language of which is by possibility susceptible of two meanings, we are, naturally, and almost irresistibly, influenced by the impression derived from the whole will of what the main object and intent of the testator was in making it, assuming, of course, such an object and intent to be apparent upon the face of it. And it is, perhaps, in this way that the general intent has been so much acted upon. To come now to the words of the penultimate limitation,— "to all and every other, the issue of my body." It was contended, on behalf of the plaintiff, that in general a devise by a testator to his issue gave an estate to all his issue— children, grandchildren, etc.— as joint tenants in fee; and that all came within the devise who were in existence at the time of vesting in possession. Many authorities were mentioned in which this rule had been followed in cases of personalty. Davenport v. Hanbury (3 Ves. jun. 257), and other cases collected in Mr. Jarman's book on Wills, vol 2, p. 89 and 90; and to some extent the same rule has been followed in the cases of realty (see Cook v. Cook, 2 Vern. 545); and the word "estate" was referred to as incorporated in the devise so as to carry the fee without any words of limitation. But, without relying upon any general intent, it has never been questioned that words ought to be construed by, or along with, the context of which they may be said to form part. Now, we find in the will before us a long series of devises, specifically carrying the estate through all the lines of one part of the testator's issue, each line being followed by the words "in default of such issue," and upon failure of all these lines, there is a devise " to all and every my other issue," and in default of such issue a devise to his right heirs forever. We think it would be unreasonable to hold that, because the specified male lines had been exhausted, the word "issue" is to be read in a different sense from the sense in which it had been used so often before, and that the whole series of devises were not to be read as consecutive limitations of the same estate. The ultimate limitation in fee we read as dealing with the same estate as all the previous limitations, namely, the whole estate as one, and the failure of issue is the failure of issue to take the whole and not several parts. It was suggested on behalf of the plaintiffs that the ultimate limitation might be read, not as a remainder upon the previous estate, but as intended to provide for the case of there being no one to take under all the previous limitations at the testator's death. We think this wholly inadmissible; for, without referring to the state of the testator's family, there are many separate devises to his living children and grandchildren, besides others to their issue unborn. The ultimate limitation in fee is a great difficulty in the way of the plaintiffs' contention, and the effect of it cannot be got rid of in the way suggested, or, as far as we can see, in any other way. It was urged by the learned counsel for the plaintiffs that, properly, the word " issue " referred to procreation and not to inheritance; the word "heirs" to inheritance and not to procreation; and the words "heirs of the body" to procreation and inheritance. But, though this is the primary sense of the words taken by themselves, yet we know frequently the word "heirs," taken with the context, becomes "heirs of the body," and the word "issue," when used in a will in connection with previous life estates, and with limitations in default of issue, generally refers to inheritance as well as to procreation, and is equivalent to "heirs of the body." We see no reason to doubt that the remark upon the case of King v. Melling (1 Vent. 225, 232) quoted by Mr. Hayes in his Principles for Expounding Dispositions of Real Estate (a work frequently referred to in the argument), is applicable to the present case. It is found at the top of Table III., and is as follows:

"It has been established, ever since the case of King v. Melling, that in a will the words issue of the body are as strict proper words of limitation as the words heirs of the body, and equally give an estate tail in lands legally devised." (Per Lord Hardwicke, 1 Hargr, Coll. J., 403.) We see no reason why the words must receive a different meaning in a devise by a testator to the issue of his own body from that which they would receive in a devise to the issue of the body of another person. In the present will the use of the words, "in default of such issue" throughout, after a devise to the heirs male of the several tenants for life, and the form of the penultimate devise followed by the devise over in default of issue, justifies us in reading the word "issue" in that devise as equivalent to " heirs of my body." We do not think the words "all and every" in themselves, when applied to issue, necessarily import distribution. In Surtees v. Surtees (L. Rep. 12 Eq. 400), quoted by the learned counsel for the plaintiffs, tho words, " to the use of every son of J. S., living at the death of the eldest son of J. S., or born during the testator's lifetime," were held to give to each son a separate interest. But the words, "son or sons" (excluding the next generation), are very different from the word "issue," which takes in all descendants, and the naming a time when the objects of the gift were to bo ascertained, to the exclusion of others coming within the description, seems to refer to a separate interest in each of them. On the other hand, in Cradock v. Cradock (4 Jur, N. S. 626), the words, "all and every " occurred. The words were, after other devises in tail, "and for default of such issue to the third and all and every other, the son and sons of the body of A., lawfully begotten or to be begotten, and the heirs male of such son and sons' lawfully issuing; and for default of such issue to the testator's own right heirs for ever." It was held that these words gave to the third and other sons, estates in succession in tail male, and that the third son took the entirety. No authority was referred to in which the words "all and every the issue," coupled with any context such as we have here, and applied to real estate, had been held to make a joint tenancy, either in fee or in tail. Reading the penultimate limitation then as a devise to the heirs of the body of the testator, and for the present, supposing the case not to be complicated by the addition of the word " other," we think the case would be governed by Mandeville's case, and that the effect of the devise would be, that there would be a remainder under which all the heirs of the body of the testator would take in the same manner as if the testator had been tenant in tail, and the heirs of his body had taken by succession from him. The case is given in Co. Litt. 26b. The section of Littleton deals with such a case as well as the commentary. The text is, sect. 30, "also if a man hath issue a sonne and dyeth, and land is given to the sonne and to the heires of the body of his Father begotten, this is a good entaile, and yet the Father was dead at the time of the gift, and there may be many other estates in the taile, by the equity of the said statute which be not here specified." The statute referred to is, of course, the statute of Westminster, 2, De donis (13 Edw. 1). The commentary gives Mandeville's case. "John de Mandeville died, leaving a wife Roberge, and had issue Roberge and Maude. Michael de Moreville gave certain lands to Roberge, and to the heirs of John de Mandeville on her body begotten, and it was adjudged that Robert had an estate but for life, and the fee tail vested in Robert (heires of the body of his father being a good name of purchase) and that when he died without issue, Maude the daughter was tenant in tail, as heire of the body of her Father per formam doni." This case has been the subject of much comment. It is discussed by Fearne (Contingent Remainders, p. 82), where he says, that Hale called it, with his emphatic accuracy, a quasi entail; and more fully in Butler's note, who calls it an anomalous case. There are some excellent remarks upon it of Vice-Chancellor Kindersley, in Wright v. Vernon (2 Drewry 439). It was acted upon in that case, and also in the same case on appeal, Vernon v. Wright (7 H. L. Cas. 35) and is undoubted law. If it is objected that something like a fiction is introduced, it certainly has the merit (as pointed out by the Vice-Chancellor in the case referred to) of carrying into effect the intention of the testator that all the heirs of the body should be included. In the case referred to the devise was to the heirs of the body of a third person deceased, but we think the same rule applicable to the devise to the heirs of the body of the testator, which can only take effect upon his death. The learned counsel for the plaintiff did not dispute that it was so applicable, and so that, if there was a devise to A. and the heirs of his body, and upon failure of such issue to the heirs of the body of the testator, and in default of such issue to the testator's right heirs, there would, at the death of the testator, be a vested estate tail in remainder, upon failure of A.'s issue, in the heirs of the body of the testator descendible, as in Mandeville's case, with a remainder in the testator's heirs general. We have only then to consider how far the additional word "other" affects the meaning and makes the rule in Mandeville's case inapplicable; and if the necessary meaning of that word was to exclude out of the operation of the penultimate limitation, any part of the issue of the body of the testator, the rule in Mandeville's case would not be applicable, or rather could only be made applicable by qualifying the strict and proper meaning of a word as was done in Jenkins v. Hughes (ubi sup.), and the other cases referred to, in order to carry into effect the clear intent of the limitation that all the issue of his body should be exhausted before the estates went over to his collateral heirs. But it does not appear to us that the word "other" has any effect by way of exclusion at all; and for this simple reason, that there is nothing to exclude. The penultimate limitation for the benefit of "all and every other the issue of the body" is only to come into operation when the rest of the issue, not comprehended in that word "other," have been exhausted and extinguished. The distinct effects of tho word "other" may be illustrated thus:

If the testator's issue consisted of two classes, A. and B., and he was to dispose of two estates, and gave the first to class A. in tail, and the second to all and every the other issue (which would be class B.), in that case both devises would come into operation at the same time, and both estates would be enjoyed at the same time by A. and by the other issue, and A. would be excluded from the enjoyment of the second estate and the other issue from the enjoyment of the first. In that case the word "other" would for ever exclude class A. from the enjoyment of the second estate. But it is different if there is one estate to be enjoyed in succession by A., and by the other issue, and only by the other issue on the extinguishment of A. Thus, if the estate be given to class A. in tail male, and upon, failure of issue to the other issue of the testator, it is obvious that the word "other" does not operate to exclude class A. from the enjoyment of the estate which has already been enjoyed by class A. until its extinguishment, but its only effect is to exclude the other issue. The rule "Expressio unius est exclusio alterius" does not apply when the "other" has been included in the gift before. In short, in the case put of two classes of the issue, A. and B., and a devise to A., and upon the extinguishment of A. to B., the effect is the same whether the gift over be to B. or to the whole issue A. and B., A. being extinguished. We are speaking of course of the effect, so far as the actual enjoyment of the estate is concerned, which is what the testator is considering, and not of the legal effect, which maybe different by reason of the law regarding estates in remainder as vested and capable of being dealt with in the same manner as estates in possession. It need hardly be added that the way in which the law may operate upon estates by enabling entails to be cut off, or in other respects, is to be disregarded in construing wills, for which many authorities were cited at the bar. It was noticed that in the common uses of the word "other," it has two meanings, one being "different from," corresponding with the French "autre," and the other being " additional," or "in addition to." The latter is the proper sense here, and the real meaning of the words " other the issue of my body," is to add to the specified issue all that which remains, and so comprise and include it in the limitation. It may appear a paradox to say that " all my other issue has the same meaning as "all my issue," but in reality the two things are the same, when there is no issue existing except the other issue; and in that event both expressions have the same meaning. The learned counsel for the defendant put, by way of illustration, a case which raises really the same question as the present, but in a simpler form, and clear of the peculiarity of Mandeville's case; a devise to A. for life and to his first son in tail male, and in default of all other issue of A., to a stranger in fee: would it not be clear in that case that the estate was not to go over except upon a failure of all the issue of A., and would the word "other " be considered sufficiently definite and important in its meaning to prevent an estate in tail general in remainder in A., after failure of all the male issue of A.'s eldest son, upon the authority of Stanley v. Lennard (1 Eden. 87) (which is the same case without the word "other ''), and a class of cases to the same effect. Langley v. Baldwin (1 Eq. Cas. Abr. 185, pl. 29, cit. 1 P. Wms. 759); Doe dem. Bean v. Halley (8 T. R. 5); Parker v. Tootal, in the Ho. of Lords (11 H.L. Cas. 143; 12 L.T.Rep. N. S.; 34 L. J. 198, Ex.) We think it would not, and that the word "other" is not a governing word in such a limitation. There are some authorities to this effect with which the learning and industry of the learned counsel for the defendant supplied us, where the word " other " was used with a similar context. The first was that of James v. Richardson (Pollexfen, 457, 461). It should be noticed that the report is not of the judgment of the court, but of Pollexfen's own argument, which seems, however, to have been adopted by the King's Bench, and afterwards by the House of Lords. The case was a devise of an estate to a trustee during the life of A. in trust to permit A. to receive the rents, and the will proceeded, "After the death of A., I devise the estate to the heirs male of the body of A. now living, and to such other heirs, males and females, as he shall hereafter happen to have of his body," and for want of such heirs there was a devise over. A. had an oldest and only son, George, alive at the making of the will, and at the death of the testator the question was what estate George took, and it was considered he took an estate tail by force of the words "such other heirs, males and females, as he shall hereafter happen to have of his body." Now George was the heir male of A., and could not take if the word "other" had the effect of excluding him, because he had been named before. The argument at pages 462-3 is, "The word other does not exclude George, it only provides for the other heirs male that should be of another sort." And at page 463 it is said, "If lands be given to A. for life, remainder to the heir male of the body of B., remainder to the other heirs of B., in this case the heir of B. takes two estates, one as heir male and the other as heir general." But it is obvious that he could not do this if the word "other" did not include him, though he had been named before. No doubt what has been quoted is only the argument of Pollexfen, but if it be correct it is strictly applicable to the present case, and shows that under the present will the second baronet took two estates under the will of the first baronet, an immediate estate for life, and an estate tail general in remainder upon failure of the preceding limitations. Another authority was the case of Burchett v. Durdant (2 Ventris, 311.) In that case the same will appears to have come in question, and it is said the matter was three times argued in the Exchequer Chamber, and the third resolution is to the effect that George Durdant took an estate tail by force of the words "and to such other heirs, male and female, as he" (Robert Durdant) "shall hereafter happen to have of his body." This is to the same effect as Pollexfen's argument, and it was affirmed in the House of Lords; and the word "other" could not have the effect of excluding George, who was the heir male previously named. "We were also referred to a passage in Preston on Estates, vol. 2, p. 506, to show what his opinion was of the effect of the word ''other" in a limitation similar to the present. He was a man of undoubted eminence in his branch of the Profession, and of great experience in the drawing of deeds and wills, and a good authority as to the meaning of particular words. The case put by him is of " a gift by deed to R., and K., his wife, and their heirs, and to the other heirs of R., if the said heirs of R. and K. should die without heirs of themselves." The remark of the writer upon this case is that two distinct estates were limited, the one by a special entail (that is to the heirs of the body of R. and K.), the other a fee simple by the words "other heirs of R.," for the donor had declared that the order of succession should, in the first place, be regulated by a reference to the joint heirs of the husband and wife, and should be extended to and include in a secondary consideration and under a more remote gift, all the heirs of the husband. Thus the words "other heirs" include all heirs, and do not exclude the eldest son, though he would come within the previous limitation. We will now recapitulate in this rather complicated case, the conclusions upon the various arguments submitted to us upon which our judgment is founded, for the reasons which have been given already. First, the words "issue of my body," in the penultimate limitation, are to be read in the same sense as "heirs of my body;" secondly, having regard to the context and the whole will, we cannot read the devise to the " issue of my body," as having the effect which, in an ordinary will taken by itself, it might have, namely, of giving the estate per capita in joint tenancy, among all who came within the class at the time of vesting in possession; thirdly, the words "all and every" do not import that "all and every" are to take at the same time, but are well satisfied by all taking in succession; fourthly, the word " other" is not to be read in the strict sense of intending to exclude those coming within the class who have been provided for before, and are supposed to have failed, but rather to complete a provision for all the issue, so as to make the estates go over, by force of the words, "in default of such issue," at the end of the penultimate limitation, only upon failure of all the issue of the testator. And the result is that by virtue of the penultimate limitation, there was, at the death of the testator, the first baronet, a vested remainder in the heirs of his body in tail general, to which the second baronet then became entitled; that this remainder descended to the third baronet, the grandson, and that, as he was also tenant for life in possession, he was qualified to execute a disentailing deed so as to acquire the absolute disposition of the property, subject to all the estates preceding the penultimate limitation. It is only necessary to add that this estate tail, if suffered to continue until it takes effect in possession, exactly and completely gives effect to the words of the penultimate limitation because, upon failure of all the issue named in the particular limitations, the persons who would take under the penultimate limitation, and the only persons who would take under it are "all and every other the issue" of the body of the testator. And this is a great proof of the soundness of the conclusion, notwithstanding the objections made to that mode of arriving at it which we have already considered. This conclusion agrees with the recital in the disentailing deed, which is no doubt made upon mature consideration. It was admitted that the disentailing deed was properly executed, and effectual in law, if the grandson was qualified to make it. The claim of the plaintiffs, if without the disentailing deed they would have had any claim, is therefore barred, and the defendant who claims under the disentailing deed is entitled to the judgment of the court. Having come to the conclusion, in the first action, that the defendant is, upon the facts stated, entitled to the property, it follows that in the other actions, as the facts are the same, the defendant is also entitled to judgment; but it seems proper to state the objections to the title set up by the plaintiffs in those other actions.

In the second action, that of Roach v. Blake, the plaintiff is Eleanor Ann Roach, the only surviving daughter of Eleanor Ann, who was herself the last surviving child of the second baronet, and last tenant in "tail male under the specific limitations of the will." She was the heir in tail general of the body of the testator at the time when the penultimate limitation took effect in possession. The Solicitor-General, who appeared for her, contended that she was therefore the person entitled. His argument was that the penultimate limitation was a contingent remainder — that is, contingent as to the person who was to take under it until the happening of the event; and of course his whole argument was based upon the introduction of the word "other," which caused the contingency. In addition to the answer already given, by attributing the proper sense to the word "other," and to another objection, namely, that this reading introduces a contingent remainder after so many limitations, when another reading introduces a vested remainder (always so much preferred because it enables the property to be dealt with), another objection is that, though this reading provides one of the issue to take when the event happens, it makes no provision for the succession of "all and every the other issue;" and accordingly the Solicitor-General relied (as he was obliged to do) upon Mandeville's case, and contended that "all and every the other issue" might succeed as upon a supposed entail, or quasi entail, in the testator to himself and the other heirs of his body (excluding certain lines of descent, which would include the real heirs of his body). Cases of limited entail were put, such as the entail upon the Electress Sophia of Hanover and the heirs of her body being Protestant — or upon a man and the heirs of his body, tenants of the Manor of Dale. It is unnecessary to enlarge upon the obvious distinction between such cases (where a condition is imposed upon a person who is the real heir of the body) and the present. Such a distinction might be of importance in the case of a grant or devise to the ancestor as well as to the heirs of his body; but we should certainly not extend Mandeville's case to such remote and contingent interests as we are now considering, or suppose the testator to be quasi tenant in tail of an estate descendible, not to the heirs of his body, but to some person who might at some remote period, and upon the happening of a certain event, fill the character of heir of his body, and, upon the failure of his issue to some other heir of the body not easily ascertained. In the case put, the heir of the body who took by descent would take an entirely different estate from that of the ancestor from whom he is supposed to inherit. In the third action, Clennell v. Blake, the claimant is Pereival Fenwick Clennell. His mother was the survivor of all the issue of the testator living at his death (other than those included in the particular limitation), and he claims either the entirety, as the survivor of the issue living at the death, or his share, in case the other issue are allowed to come in. His case, as regards the claim to the entirety, differs from the first case only in this, that he insists that the distribution ought to be made among the issue at the death of the testator; and as to the share claimed his case is the same as the first. The same objections apply quite as strongly. Distribution among the issue per capita is equally against the language and intent of the will, whether finally made at the death of the testator or modified by the introduction of other issue.

In the fourth case, Reed v. Blake, the claimant is Francis Reed, and he claims the entirety as heir in tail of the testator at his death, all those being excluded who come within the particular limitation. He relies upon the exclusive effect of the word "other," and the distinction between his case and the second (that of Roach) is that he claims as upon a remainder vested at the death of the testator, whereas, in Roach's case, the remainder is contingent as to the person to take. The same objections apply as to Roach's case, except that founded upon the construction making the remainder contingent. It provides one person to take under the limitation, but makes no provision for "all and every the other issue," except by the eccentric application of Mandeville's case. The following would be one of the consequences of the construction contended for by this plaintiff: If the third baronet (the grandson) had left one child, a daughter, surviving him, that daughter would clearly have been excluded from all the particular limitations, and though, upon the extinction of all the male lines, she would be the proper representative of the family, she would be excluded by the grandson of her great great aunt, Sarah Reed, whose issue the testator purposely excluded in the enumeration of those who were to take. According to the construction which we put upon the will, the estate would have come to her in a regular course of descent as tenant in tail in the events which have happened. There was a fifth case mentioned upon the argument, in which the plaintiffs are the same as in the first action, and the defendant is Francis D. Blake, and which is only a different action because it is brought in respect of other property. In that case also the judgment will be for the defendant.

Kelly, C.B. — I entirely concur in the judgment delivered by my brother Cleasby, which may be taken to be the judgment of my brother Martin, my brother Cleasby, and myself. I am, however, requested by my brother Bramwell to read the following few remarks on his behalf.

Bramwell, B. — I concur that our judgment should be for the defendant, and I agree in all the reasoning of my brother Cleasby, except in his dealing with the word " other" in the penultimate clause. 1 think that the testator did not intend and has not expressed the intention that any of those issue of his body before named should take an additional estate to those he had already given them. I do not think he had so improbable a thing in view. I think he meant that, for default of such issue as named, the daughters of the sons of his eldest grandson, on their default the daughters of his eldest grandson, then the daughters of the sons of his second grandson, then the daughters of his second grandson, then in the same way as to the third, fourth, and other grandsons, then the daughters of granddaughters should take in succession as purchasers, and so on, according to heirship to him. This would give the estate to Mrs. Roach; but this intention is not expressed sufficiently to be carried into execution, and the only way to accomplish the testator's general or governing intention to provide for the issue of his body is to construe the will as proposed by my brother Cleasby. I therefore concur in his judgment, and the more readily that, if the penultimate clause is not interpreted as he proposes, it is unmeaning, in which case also the defendant is entitled to our judgment.

Judgment for the defendant in each of the five actions.

Feb. 15, 1873. — The plaintiff in the third of the above actions, Percival Fenwick Clennell, submitted to the above judgment of the Court of Exchequer in favour of the defendant, but the plaintiffs in all the other actions brought error thereupon to the Court of Exchequer Chamber, before which court, the cases were argued on the 15th, 17th, and 18th of Feb. last.

The same counsel appeared and the same arguments used.

Cur. adv. vult.

April 16, 1873. — Their Lordships having taken time to consider, the following judgment of the Court (Blackburn, Keating, Mellor, Grove, and Honyman, JJ.) was now delivered by

Blackburn, J.—The questions raised in these five actions all depend upon the construction of the same clause in the will of Sir Francis Blake, who died on the 29th of March, 1870, having made the will in question on the 8th Jan. 1780. The provisions and effects of the will are sufficiently stated in the judgment of the court below, and to that we refer instead of repeating them again. The whole question in each of the causes depends upon the true construction of what has been called the penultimate clause in the will. The general rule is that, in construing a will, the court is entitled to put itself in the position of the testator, and to consider all the material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words. As is said in Wigram on Extrinsic Evidence, p. 9, "Tho question in expounding a will is, not what the testator meant, as distinguished from what his words express, but simply what is the meaning of his words." But we think that the meaning of words varies according to the circumstances of and concerning which they are used. In Doe d. Hiscocks v. Hiscocks (5 M. and W. 363-367; 9 L. J., N. S., 27-29, Ex.) in the judgment of the Court of Exchequer it is said — "The object in all cases is to discover the intention of the testator. The first and most obvious mode of doing this is to read the will as he has written it, and collect his intention from his words. But, as his words refer to facts and circumstances respecting his property and his family, and others whom he names and describes in his will, it is evident that the meaning and application of his words cannot be ascertained without evidence of all these facts and circumstances. All the facts and circumstances therefore respecting persons or property to which the will relates are undoubtedly
legitimate and often necessary evidence to enable us to understand the meaning and application of his words." No doubt, in many cases, a testator has for the moment forgotten or overlooked material facts and circumstances which he well knew. And the consequence sometimes is, that he uses words which express an intention which he could not have wished to express, and would have altered if he had been reminded of those facts and circumstances. But the court is to construe tho will as made by the testator, and not to make a will for him, and therefore it is bound to execute his expressed intention — even if there is great reason to believe that he has by blunder expressed what he did not mean. And the general rule, we believe, is undisputed that, in trying to get at the intention of the testator, we are to take the whole of the will, construe it all together, and give the words their natural meaning (or, if they have acquired a technical sense their technical meanings), unless, when applied to the subject matter which the testator presumably had in his mind, they produce an inconsistency with other parts of the will, or an absurdity or inconvenience so great as to convince the court that the words could not have been used in their proper signification, and to justify the court in putting on them some other signification which, though less proper, is one which the court thinks the words will bear. The great difficulty in all cases is in applying these rules to the particular case; for to one mind it may appear that an effect produced, by construing the words literally, is so inconsistent with the rest of the will, or produces an absurdity or inconvenience so great as to justify the court in putting on them another signification which to that mind seems a not improper signification of the words, whilst to another mind the effect produced may appear not so inconsistent, absurd, or inconvenient as to justify putting any other signification on the words than their proper one, and the proposed signification may appear a violent construction. Grey v. Pearson (6 H. L. Cas 61; 26 L. J. 473 Ch.) is an example of this. Lord Cranworth, Lord St. Leonards, and Lord Wensleydale laid down the general rule in terms not substantially differing from each other; but when they came to apply them to the case in hand, there was a marked difference of opinion; We apprehend that no precise line can be drawn, but, that the court must, in each case, apply the admitted rules to the case in hand; not deviating from the literal sense of the words without sufficient reason, or more than is justified; yet not adhering slavishly to them, when to do so would obviously defeat the intention which may be collected from the whole will. Let us then, in the first place, see what were the material circumstances known to the testator in the present case. The state of the testator's family at the time he made his will, was as follows: He had one son alive, Francis (afterwards the second baronet), who was married and had then living two sons; Francis (afterwards the third baronet), and Robert, and three daughters, Elizabeth, Isabella, and Sarah. These were all young children at the time of their grandfather's will. The testator also had a daughter, Isabella, alive and unmarried. He had also either four or five grandchildren, the issue of a deceased daughter, Sarah, who had married a Mr. Reed, the eldest of whom was a son, John Reed, then in his twenty-first year. The statment in the case leaves it doubtful whether a fifth grandchild, Isabella Reed, survived the testator or not. Having made the earlier provisions in his will, the testator, if he recollected all these facts and understood the effect of his previous limitations, would have known that he had then in existence at least four grandchildren, the issue of his deceased daughter, Sarah, to whom nothing would come under the previous limitations in his will. He would also have known that it was very likely that the children of his son Francis might have daughters who might have descendants, and that the different tenants in tail male to whom he had limited estates, and his daughter, Isabella, might have daughters who might have descendants, and that the four children of his daughter Sarah might have descendants. He, therefore, knew that there were four persons, issue of his body, in existence, and a fair probability of a large number of persons, issue of his body, coming into existence who would take nothing under the previous limitations in his will. He also knew, or ought to have known, that when all the estates in tail male which he had created had died out, there was at least a probability that his estate, if not otherwise disposed of, would descend to coheiresses, and he has in his will, declared that it was his desire " to prevent, as far as may be, the dispersion of my estates amongst several persons." Such being the state of things, he devises his estates, in default of such issue (that is issue who would take under the several estates in tail male already created), "to the use and behoof of all and every other the issue of my body, and for default of such issue to my right heirs for ever." And the question which the court has to answer, we apprehend, is what intention do these words express when used by a testator with reference to such a state of the family, and in a will containing such previous limitations and such a declaration of the testators desire to prevent the dispersion of his estates amongst several persons. The Court of Exchequer came to the conclusion that the intention expresssd by the testator was, that his estates, as an entirety, were to go to all the issue of his body successively according to their order, and that the only means of effecting that intention was to apply the doctrine of Mandeville's case (Co. Litt. 26 b.), and construe the will as creating what has been sometimes called a quasi entail, as if the estate had been conveyed to the testator himself and the heirs of his body. If this be correct, there was a vested remainder in tail general created, which descended on Sir Francis Blake, the third baronet, and, who has executed a disentailing deed.and all the previous estates having expired, his devisees, who are the defendants, have the title, and all the plaintiffs fail. The plaintiffs' cases now before us dispute the propriety of this decision.

Allgood v Blake — Allgood v F. Blake.

These two actions are brought to recover different portions of property from different defendants, but are in truth one. Mr. Manisty, who appeared for the plaintiffs in both those actions, contended that the effect of the penultimate clause was to create a devise to a class, namely, to all the issue of the testator's body who should be in existence at the time when the last estate in tail male should expire, from the dying out of all the issue who took under the previous limitations. He argued that this devise vested the remainder in the four children of Sarah who were living at the testator's death, and that the class would open to receive each fresh person born afterwards, who was the issue of the testator's body, not being one of those who might take under the previous limitations in the will. As the devise is of the "estates" of the testator, these parties (if this construction is to prevail), would have taken the remainder in fee among them as joint tenants, had it not been for the devise over, in default of such issue, to the testator's right heir. This made it necessary to contend that they took separate undivided portions in the estates, each as tenants in tail general. In the events which have happened the result would be that, on the death of Mrs. Stag, the last tenant in tail under the previous limitations, the estates were to go to eight different persons as tenants in tail general of undivided parts in the whole; and also that several of those, being children of living parents, took estates tail in parts at the same time that their parents took estates tail in other parts. It is obvious that no testator was likely to wish to produce this result, and it is quite certain that this testator, who in the same will declares his desire "to prevent, as far as may be, the dispersion of my estate amongst several persons," did not wish to do so; and Mr. Manisty did not dispute this, and he admitted that it produced a very natural prejudice against his clients, which he said was only a prejudice, for the testator had used words (according to his argument), which expressed an intention to make this devise; and in effect he argued that the court below, instead of interpreting his will, had made a will for him. We think that the utmost that he succeeded in showing was, that a devise to "the use and behoof of all and every other the issue of my body" may, from the context or otherwise, be construed to mean a devise to such persons as answer that description as a class. But we thought that the word "issue" is, at least, quite as naturally used in the sense of heirs of the body as a word of limitation; and, consequently, that the decision of the court below, in these two cases of Allgood and others v. Blake, and Allgood and others v. F. Blake was right, and we therefore did not think it necessary to hear the counsel for the defendants in these two cases, but gave judgment in them, affirming the judgment below.

Reed V. Blake.

The plaintiff in this action is the heir male of the - body of John Reed, the eldest son of Sarah, the daughter of the testator, who died in his lifetime. Mrs. Roach, who is the plaintiff in the remaining action, is the only daughter of Mrs. Stag, the last tenant in tail male under the previous limitations of the will, and is also heir of the body of the testator. These two plaintiffs agree with the defendants in contending that the estates went, under the penultimate devise, as an entirety to some one who would take an estate in remainder, after the estate in tail male in Mrs. Stag; they agreed with each other in contending that the effect of the word "other" was to prevent this remainder from coming to Sir Francis, the third baronet; but they differed from each other as to who it was who took that estate tail. Mr. Bristowe, who argued for Mr. Reed, contended, not only that the word " other" did not include the issue absolute under the previous limitations, and who, by the supposition of the will, had failed before the penultimate limitation came into effect; but also that it did not include Mrs. Roach, who certainly was one of the issue of the body of the testator, who took no estate under the previous limitations, and who has, in no sense of the word, failed, but is now alive. We thought this not a tenable proposition; and as, in our opinion, Mrs. Roach's title, whether preferable to the defendant's or not, was preferable to Mr. Reed's, we did not call upon the counsel for the defendants to argue in this case, but affirmed the decision of the court below.

Roche V. Blake.

We felt more difficulty in this case, which we heard argued fully and very ably by the Solicitor General for the plaintiff, and Mr. C. Hall for the defendant, but after taking time to consider, we are all of opinion that in this case also the judgment of the court below was right, and ought to be affirmed. The words "other the issue of my body," used as they are immediately after speaking of the failure of particular issue, do, in their prima facie natural sense, mean issue different from those who have been spoken of before. It is, we think, not so accurate to say that the word other excludes those mentioned before, as to say that it does not include them. The Solicitor-General argued that the word had more force of exclusion, and Mr. Hall did not admit that it had so much. But the testator has been here speaking of the event of the failure of the issue to whom he had previously limited the estates, when the estate which he created by the penultimate limitation would vest in possession. And if he had in contemplation that time only, the issue of his body (who had by supposition died out) and all and every other the issue of his body, would together constitute the whole issue of his body. It is a very common thing to read words creating an estate in remainder which are such as prima facie refer to the expiration of the previous estate (and so would create an estate contingent till that event happened) as creating a vested estate in remainder from the time of the testator's death; cases to that effect will be found collected in 1 Jarman on Wills, 3rd edit. 764. They are all cases in which some violence is done to the words used, because of the great convenience of making the estate vested instead of contingent, and of the probability that the construction really effectuates the intention of the testator. And we think that in this case the intention of the testator clearly is that every one of the other issue should take, and if it is necessary, in order to effectuate that intention, we think the court are fully justified in construing the word "other " as being used with reference to the time of vesting in possession, and as a word not intended to be operative, but rather intended to be demonstrative; not intended to produce any effect, but to make the idea in the mind of the testator clearer, an intention which, no doubt, it fulfils very ill. The Solicitor- General with considerable reason said that a decision as to the construction of one will can rarely be a guide as to the construction of another not in the same words, but it seems to me that the counsel for the defendants are justified in their contention that the words of this devise are so similar to those used in the will set out in the special verdict in Burchett v. Durdant (2 Vent. 311), that the decision of the House of Lords in that case, that those words created an estate tail (the reasons for which are unfortunately not reported), must have proceeded on some principle applicable to the present case. But the main argument of the Solicitor-General was that it was in no way necessary to put any violence on the words, for that full effect could be given to the intention of the testator to give an estate to each and every of the other issue, without construing the words as creating a vested estate tail general, which would descend to and vest in Sir Francis, the third baronet, as heir of the body of the testator. Two ways in which this might be done were suggested. The first was by construing them as intended to create an estate in the testator, and the heirs of his body, exclusive of those heirs of his body who would take any estate under the previous limitations in the will. So that, if Sir Francis, the third baronet, had had a son and a daughter, the estate tail, which would have been suspended till the birth of that daughter, would have vested in her, subject to an estate tail vesting in any daughters of the son who might thereafter be born, and who would come in before her, which again would be subject to be divested on the birth of a niece, the daughter of her brother, if she had one, and so on as long as any male issue of Sir Francis, the third baronet existed. This the Solicitor-General called an estate in special tail; but no such estate ever has been known up to the present time. We do not think any such estate could be created; and we think it impossible to suppose that the testator intended to create such an estate. The other mode was what my brother Bramwell, in his judgment below, states was what he thinks the testator probably wished to say, though he thinks he did not say it. It was said we ought to construe this word " other" as meaning that an estate in tail general should be given to the daughters of the sons of his eldest grandson, or those who were the heirs of their bodies at the time when the estates in tail male expired, being contingent, as to the persons who were to take until that event happened. And, inasmuch as in the event of there being more than one such daughter, the estate would be divided amongst them as coheiresses, contrary to the testator's express desire to prevent the dispersion of his estates among several persons, it was suggested that such daughters were to take in succession, and on failure of their issue a new set of contingent limitations were to be implied, which, in the events that have happened, would have been forty-eight in number, and might have been many more. Perhaps, if the testator had given instructions to an able conveyancer, such as framed the earliest part of this will, to prepare a settlement for him to the effect which my brother Bramwell suggests, that conveyancer might have been able to frame limitations which would have effectuated his intentions. It would not have been easy, and the limitations would, when expressed, have probably been very voluminous; but it might, perhaps, have been done. But we think that, when we are asked to crowd into the one word "other" the whole of such a complicated limitation, we are asked to put a far greater strain upon the word than can be said to be put upon it by adopting the construction of the Court of Exchequer. Moreover, the construction contended for on behalf of the plaintiff makes all these numerous remainders contingent, whilst the other construction makes one vested remainder, which alone is a strong reason in favour of the latter. We therefore think that the judgment of the court below should, in this case, also be affirmed. Judgments affirmed.

Attorney for the plaintiffs in the first and fifth actions, W. G. Jennings, 18, Bennett's Hill, Doctor's Commons, E.G., agent for J. and N. G. Clayton, Newcastle-upon-Tyne.

Attorney for the plaintiff in the second action, W. G. Jennings, agent for G. M. Arnold, Gravesend.

Attorney for the plaintiff in the third action, W. G. Jennings, agent for Fenwick and Phillips, Newcastle-upon-Tyne.

Attorrey for the plaintiff in in the fourth action, Nicoll, Burnett; and Newman, 8, Howard-street.

Attorneys for the defendants in the four first actions, Gray Johnston,and Mounsey, 9, Staple Inn.

Attorney for the defendant in the fifth action, G. Knox, Bloomsbury-square, W.C., agent for J. Saunderson, Berwick-upon-Tweed.

For future reference I have extracted the text for this discussion.

Transcriber: Elizabeth Kipp
Recorded: 24 Mar 2014
Source: The National Archives, PROB 11/1656/302
Testator: Sir Francis Blake, Baronet
Place: Twisel Castle, Durham, England
Type of Record: Will
Date of document: 6 Aug 1808, probated 9 May 1822
Condition: 19th century English, legible copy

[Margin]: Sir
[Margin]: Francis
[Margin]: Blake
[Margin]: Baronet
[Margin]: 72

1    This is the last Will and Testament
2    of me Sir Francis Blake of Twisel Castle in the County of Palatine
3    of Durham Baronet First I give and bequeath all my personal estate
4    of what nature or kind soever except such parts thereof as are hereafter
5    specifically disposed of unto the Right honourable Earl Grey of Howick and
6    William Alder of Horncliffe in the said County palatine of Durham
7    Esquire their Executors Administrators and assigns upon trust to apply
8    the same and even part thereof (except as hereinbefore excepted) for or
9    towards payment of my just debts funeral expences and the pecuniary
10    legacies given in and by this my will or to be given by any codicil
11    or codicils to be by me added thereto next I give devise and bequeath
12    all and every my castles moneys messuages lands Tenements tythes
13    fisheries hereditaments and real estates whatsoever whether in possession
14    revision remainder or expectancy whereof I have any disposing
15    unto and to the only proper use and behoof of the said Earl Grey and
16    William Alder their heirs and assigns Upon trust that they or the survivor
17    of them or the heirs and assigns of such survivor do and shall with all
    [Page 2]
18    convenient speed after my decease by mortgage sale or other disposition of
19    my said real estates or a competent part thereof levy and raise so much
20    money in and of my personal estate as shall be sufficient to fully answer
21    and pay the whole of my just debts funeral expences and the legacies
22    in and by this my Will given and bequeathed by any codicil or to be
23    give and bequeathed by any codicil or codicils to be by me added thereof
24    and do and shall in like manner in case there shall be a deficiency of my
25    personal estate levy and raise any sum or sums of money not exceeding in
26    the whole the sum of three thousand pounds of lawful money of Great Britain
27    and pay the same or any part thereof unto such person or persons at such
28    time or times and in such proportions and manner in all respects as my
29    dear Wife shall by any deed or deeds writing or writings with or without
30    power of revocation and new appointment to be by her sealed and delivered
31    in the presence of and to be attested by two or more credible Witnesses
32    or by her last Will and Testament in writing or any codicil or codicils
33    thereto to be by her respectively executed in the presence of and to be
34    attested by the like number of Witnesses shall direct or appoint and in
35    default of such direction and as to so much of the said sum of three
36    thousand pounds whereof no such direction or appointment shall be
37    made the same to sink into my real estate and not to be raised or paid
38    and for facilitating the levying and raising of such sum or sums of money
39    as shall be necessary for the purposes aforesaid by sale or mortgage
40    of my said real estates or a competent part thereof I do hereby
41    declare that the receipt of receipts of the said George Earl Grey and William
42    Alder or the survivor of them or the heirs or assigns of such survivor shall
43    from time to time be a good and sufficient discharge or good and sufficient
44    discharges to any purchaser or purchasers mortgagee or mortgagees of my
45    said real estates or any part or parts thereof and that such purchases or
46    purchasers mortgagee or mortgagees his her or their heirs Executors Admors
47    or assigns shall not after payment of his her or their purchase or mortgage
48    money and obtaining such receipt or receipts for the same as aforesaid
49    be bound or obliged to ascertain the quantum of money necessary to
50    be raised or to see to the application thereof or answerable or accountable
51    for any loss misapplication or nonapplication thereof and as to such
52    so much and such parts and part of my said real estate as shall
53    remain unsold or undisposed of for or towards pursueing the purposes
54    aforesaid and as to the Equity of redemption of such part or parts
55    thereof as shall be mortgaged for or towards answering the same
56    purposes upon trust to stand seized thereof in the first place for the
57    further and better serving to my said dear Wife the payment of
58    the jointure or jointures secured or intended to be secured to
59    her by the settlements executed upon our marriage and which by
60    several acts done by her since that period for my accommodation
61    touching or concerning the estates comprised in the said settlements
62    some parts thereof she may have weakened or endangered and in the
63    next place in trust for my eldest Son Francis Blake and his assigns
64    for the term of his natural life without impeachment of waste and
65    immediately after his decease in trust for the first second third fourth
66    and all and every other the Son and Sons of my said Son Francis
67    Blake lawfully to begotten severally and successively according to
68    seniority of one and the several and respective heirs male of the body
69    and bodies of all and every such son and Sons lawfully issuing and for
70    default of such issue in trust for my said second son Robert Dudley
71    Blake and his assigns for the term of his natural life without
72    impeachment of waste and from and after his decease in trust for the
73    first second third fourth and all and every other the Son and Sons of my
74    said Son Robert Dudley Blake lawfully to be begotten severally and
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75    successively in like manner according to senority of them and the several and respective
76    heirs male of the body and bodies of all and every such son and Sons
77    lawfully issuing and for default of such issue in trust for my second
78    Son Robert Dudley Blake and his assigns for the term of his natural
79    life without impeachment of waste and from and after the decease
80    in trust for the first second third fourth and all and every other the
81    Son and Sons of my said Son Robert Dudley Blake lawfully to be
82    begotten severally and successively in like manner and the several
83    and respective heirs male of the body and bodies of all and every
84    such Son and Sons lawfully issuing and for default of such issue
85    in trust for my third Son William Blake and his assigns for the
86    term of his natural life without impeachment of waste and from
87    and after his decease in trust for the first second third fourth and
88    all and every other the Son and Sons of my said Son William
89    Blake lawfully to be begotten severally and successively in like
90    manner and the several and respective heirs male of the body and
91    bodies of all and every such Son and Sons lawfully issuing and
92    for default of such issue in trust for my eldest daughter Elizabeth
93    Blake for the term of her natural life without impeachment of
94    waste subject nevertheless to the proviso or condition hereinafter
95    contained in regard to any husband she may marry assuming the
96    name of Blake and from and after her decease in trust fore the
97    first second third fourth and all and every other the Son and Sons
98    of my said daughter Elizabeth lawfully to be begotten severally
99    and successively according to seniority of age and the several and
100    respective heirs male of the body and bodies of all and every such
101    Son and Sons lawfully issuing and for default of such issue in
102    trust for my second daughter Isabella Blake for the term of her
103    natural life without impeachment of waste subject nevertheless
104    to the same proviso or condition in regard to any husband she
105    may marry and from and after her decease in trust for the first
106    second third fourth and all and every other the Son and Sons of
107    my said daughter Isabella lawfully to be begotten severally and
108    successively in like manner and the several and respective heirs
109    male of the body and bodies of all and every such Son and Sons
110    lawfully issuing and for default of such issue in trust for my
111    third daughter Eleanor Ann Stag for the term of her natural life
112    without impeachment of waste subject nevertheless to the same
113    proviso or condition in regard to her present husband or any
114    husband she may hereafter marry and from and after her decease
115    in trust for the first second third fourth and all and every other
116    the Son and Sons of my said daughter Eleanor Ann lawfully
117    to be begotten severally and successively in like manner and the
118    several and respective heirs male of the bodys and bodies of all and
119    every such Son and Sons lawfully issuing and for default of such issue
120    in trust for my own right heirs for ever provided always and I do
121    hereby declare my will to be that my said real estates hereinbefore
122    devised or limited to my said daughter Elizabeth Blake and to the
123    first and others Sons and the heirs male of the respective bodies of
124    such Sons and to my said daughter Isabella Blake and to her first
125    and other Sons and the heirs male of the respective bodies of such
126    Sons and to my said daughter Elleanor Ann Stag Blake and to her first and
127    other Sons and the heirs male of the respective bodies of such Sons
128    so devised or limited upon this express condition that they my said
129    several daughter and the husband of my said daughter Eleanor Ann
130    Stag and the several and respective husband of such of them as shall
131    marry and their respective Sons and issue male who are to take by
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132    virtue of and under the limitations hereinbefore contained do and shall when
133    and as they shall respectively come into and be in the actual possession of
134    my said real estates or any part thereof by virtue of or under this my
135    Will and during such time as they respectively shall be in possession of
136    the same estates and premises or any part thereof and for ever thereafter
137    assume and take upon himself herself and themselves respectively and
138    continue to use the surname of Blake only and no other surname and
139    bear the Coats of Arms of that family and shall in all deeds writings
140    Letters and other instruments of writing be stand and called by the
141    surname of Blake only and set and subscribe and write his her and
142    their surnames respectively Blake only to all and every such deeds
143    writings letters and other instruments and that in case such person or
144    persons as aforesaid shall neglect or refuse so to do for the space of
145    Six calendar months next after he she or they shall become so intitled
146    to the said estates as aforesaid the person so neglecting or refusing shall
147    not have or take any benefit estate or interest under or by virtue of
148    this my Will of or in the said estates and premises and that in such
149    case the person who by virtue of the limitations aforesaid is to take
150    next in remainder after the person or persons so neglecting or refusing
151    shall enter upon have and enioy all the said estates and premises in
152    as full and beneficial a manner as if the person or persons so
153    refusing or neglecting were actually dead provided that such person in
154    remainder to take by virtue or in consequence of such neglect or
155    refusal shall assume and take upon him or her and continue and use
156    the surname of Blake only and bear the Coat of Arms of Blake as
157    aforesaid provided also and I do hereby declare that it shall and may
158    be lawful to and for my said Sons Francis Blake Robert Dudley
159    Blake and William Blake and my daughters Elizabeth Blake Isabella
160    Blake and Eleanor Anne Swag Blake respectively from time to time when and
161    as he or she shall respectively be in possession or intitled to the rents
162    and profits of my said estates by virtue of this my Will by indenture or
163    Indentures to be sealed and delivered by him or her in the presence of and
164    attested by two or more credible witnesses to make any demise or lease
165    demises or leases of all or any part of parts of my said manors and
166    premises with their appurtenances to any person or persons for any term
167    or number of years not exceeding fifteen years from the time of
168    the making thereof so as there be reserved to every such demise or
169    lease the best and more improved yearly rent to be incident to the
170    immediate reversion of the premises to be demised that can or may
171    be reasonably had or obtained for the same without taking any fine
172    premium or benefit or sum or sums of money or other thing for the
173    making thereof and so as these be contained in every such demise or
174    lease a condition of reentry on nonpayment of the rent or rents thereby
175    to be reserved and so as the respective lessees or Grantees to whom
176    such demises or Leases shall be made do execute counterparts of their
177    respective leases and do thereby covenant for the due payment of the
178    rents thereby to be reserved and so as all such demises or leases be
179    so framed as there be not contained therein any Clause or Clauses whereby
181    any power or authority shall or may be given to any Lessee or Lessees
182    to commit waste or to exempt him or them from punishment for committing
183    waste and that the several lessees their Executors Administrators and
184    assigns be thereby obliged to observe a due course of husbandry with
185    regard to the lands to be to them respectively demised and whereas
186    my late father Sir Francis Blake Baronet by his Will dated the eight
187    day of January one thousand seven hundred and eighty after giving
188    several specific and pecuniary Legacies devised all the residue of his
189    personal estate unto and among my younger Children in the following
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190    words that is to say and thus charged and chargeable with these
191    several legacies and orders I make the younger children of my said
192    Son Francis Blake as residuary Legatees intitled unto the remainder and
193    reversion of my personal estate share and share alike and appointed
194    me and my said Sister Isabella Executors of his said Will But I
195    alone proved the same and possessed my self of the clear residue of
196    his personal estate which according to the highest estimate did not
197    exceed six thousand pounds in value and there being no direction in
198    my said fathers Will respecting the application thereof or of the
199    interest or annual produce thereof during the minority of my younger
200    children I have even since retained the same in my own lands and
201    whereas I had five younger children living at the decease of my said
202    father and I have now the same number But one of those who were
203    living at the death of my father namely Sarah soon afterwards
204    departed this life an infant of tender years and one of my present
205    younger children namely Eleanor Ann was born after his decease
206    whereby doubts are entertained whether she is entitled to any part or
207    share of his residuary personal estate but I have been advised that
208    I am entitled to the share of my said daughter Sarah who died
209    an Infant after the decease of my said father as her next of kin
210    and that I have a right to retain give the same to my daughter
211    Eleanor Ann should she not be entitled to a part of share in such
212    residuary estate with my other younger children under my said fathers
213    Will and I have also been advised that I have a right to retain
214    the interest and annual produce of the same residuary estate during
215    the minority of my said younger children towards their maintenance
216    and education but this latter right and even other right in or to the
217    said residuary personal estate I wish to relinquish so as my said
218    daughter Eleanor Ann may partake thereof equally with my other younger
219    children which I believe was the real intention of my said father that
220    all my younger children should share alike and in order to avoid all
221    arguments after my decease and all disputes in respect of the residue
222    of my said fathers personal estate or the application thereof or of
223    the interest or annual produce thereof I have upon the marriage of
224    my daughter Eleanor Ann with Bethel Earnshaw Stag Esquire deceased
225    secured the sum of two thousand pounds to and for and in lieu of
226    her part of share of my said fathers residuary personal estate where
227    upon she and her said husband executed to me a release of all claims
228    and demands in respect thereof and I have given or mean to give
229    bonds to all my other children for payment of two thousand pounds
230    a piece in lieu of their said respective shares of my said late
231    fathers residuary personal estate and the interest and annual produce
232    and increases thereof up to the date of the said respective bonds and
233    which they have agreed to accept in full satisfaction thereof and
234    they have executed or intent to execute releases to me of all
235    claims and demands in respect of such residuary estate and the
236    interest annual produce and increases thereof Now I do hereby subject
237    and charge my real estate with the payment of the said sums of
238    two thousand pounds a piece from the date of the said Bonds given
239    or intended to be given for the same and in case no bond shall
240    be given then from the date of this my Will to my said younger
241    children except the said Eleanor Ann who hath already received any security for
242    hers upon condition that they respectively release all my estates real
243    and personal of and from all claims and demands in respect of my
244    said fathers residuary personal estate and the interest annual produce
245    and increase thereof in case such releases shall not be given and
246    executed by them in my lifetime and whereas I have in pursuance of
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247    a power given to me in and by the said respective settlements executed
248    upon or previous to my marriage of appointing two sums of ten thousand
249    pounds each or thereabouts to and among my younger children in such
250    proportions as I should think proper appointed four thousand pounds or rather
251    two sums of two thousand pounds each making together four thousand pounds
252    part of the said two sums of ten thousand pounds each to my Son
253    Robert Dudley Blake as and for his part or share of the said last
254    mentioned sums and I have since the making of such appointment paid
255    to him the said sum of four thousand pounds and taken an assignment of
256    his interest therein whereby I am become entitled to that sume in my
257    own right and upon the marriage of my said daughter Eleanor Ann with
258    the said Bethel Earnshaw Stag I also executed an appointment of the like
259    sum of four thousand pounds or rather two sums of two thousand pounds
260    each as and for her part or share of the said two sums of ten thousand
261    pounds each and also advanced and secured to her besides the sum
262    of four thousand pounds so as to make up her fortune with her share
263    of her Grandfathers personal estate the full sum of ten thousand pounds
264    and it is my intention to execute a like appointment of four thousand
265    pounds or rather of two sums of two thousand pounds over to my two
266    unmarried daughters Elizabeth and Isabella and to my only other
267    younger Son William as and for their respective parts or shares of
268    the said two sums of ten thousand pounds each when and as they shall
269    severally marry or have occasion for the same in my lifetime and
270    in the interim I do by this my Will in pursuance of the powers given
271    and reserved to me by the said respective settlements direct limit
272    and appoint the sum of two thousand pounds out of each of the said
273    respective sums of ten thousand pounds to each of my said two
274    daughters Elizabeth and Isabella and to my Son William as and for
275    their respective parts or shares of the said two sums of ten thousand
276    pounds each secured for the portions of my younger children by my
277    said marriage settlements and I give and bequeath to my said
278    daughter Elizabeth over and above the appointed shares of the said
279    sums of ten thousand pounds and her share of her grandfathers personal
280    estate the sum of four thousand pounds of lawful money of Great Britain
281    so as to make up her fortune the full sum of ten thousand pounds I
282    give to my dear Wife the use of any house that I may possess at
283    the time of my decease together with all the Offices Stables and
284    other appurtenances thereunto belonging and the use also of all such
285    furniture plate books paintings and prints as may be therein for
286    the space of six months next after my decease I also give and
287    bequeath to my said dear Wife absolutely for her own use and at
288    her own free will and disposal all my horses and carriages table
289    and other linen and also all my Jewels plate furniture prints books
290    and other household effects whereof I have power to dispose I give
291    the family pictures and all my paintings and books of every kind to
292    the person who for the time being shall be entitled to and in possession
293    of the Estates settled in and by my said fathers Will to go along with
294    such estates as heir locus as far as the rules of Law or Equity will
295    admit and I give unto the said Earl Grey and William Alder the
296    Trustees of this my Will one hundred pounds a piece as a small
297    Testimony of my regard and my will is that they my said Trustees
298    or either of them or the heirs Executors or Administrators of either of
299    them shall not be answerable or accountable for any sum or sums
300    of money or other effects which shall be had and received under
301    and by virtue of this my Will but such only as shall actually come
302    into his and their hands respectively and that the one of them shall not
303    be answerable or accountable for the other of them of for the acts
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304    receipts neglects or defaults of the other of them or for the misbehavior
305    neglect default failure indecency or insufficiency of any person to be
306    by him or them employed respectively as or in nature of a Bailiff
307    receiver Steward Collector or agent (all which persons my said Trustees
308    and hereby authorized to employ accordingly or in any other capacity in
309    or about or in any wise concerning the said premises or any part
310    thereof) nor for any other misfortune loss or damage except the same
311    shall happen by or through their or his own wilful default and also
312    that they my said Trustees and each of them their and each of their heirs
313    Executors Administrators and assigns shall by and out of my real and
314    personal estates reimburse themselves and himself and allow to his co
315    Trustees all such necessary costs charges damages and expences as they
316    either or any of them shall or may suffer expend disburse bear or be
317    put unto in or about the execution of the said trusts hereby in them
318    reposed or in any wise relating thereto and I do hereby nominate
319    constitute and appoint my said dear Wife sole Executrix of this my
320    last Will and Testament and lastly I do hereby revoke all former and
321    other wills codicils and other testamentary dispositions by me at any time
322    heretofore made and I do declare this only to be and contain my last
323    Will and Testament In Witness whereof I the said Sir Francis Blake
324    have to two parts of this my last Will and Testament both of the
325    same tenor and date and each part contained in ten sheets of paper
326    set my hand and seal respectively (that is to say) my hand at the
327    bottom of each of the nine preceding sheets and my hand and seal
328    to the last sheet and my seal at the top where all the said
329    sheets are fastened together this sixth day of August in the year
330    of our Lord one thousand eight hundred and eight Francis
331    Blake Signed sealed published and declared by the said Testator
332    Sir Francis Blake as and for the last Will and Testament in the presence
333    of us who at his request and in his presence and in the presence of each
334    other have subscribed our names as Witnesses thereto An[thon]y Lambert
335    J Lambert John Burrell
336    Whereas I Sir Francis Blake of Twizel Castle
337    in the County Palatine of Durham Baronet have made my last Will
338    and Testament bearing date the sixth day of August last whereby I
339    have given devised and bequeathed all and every my castles Manors
340    messuages Lands Tenements tythes Fisheries hereditaments and real
341    estate whatsoever unto the right honourable Earl Grey and William
342    Alder Esquire their heirs and assigns upon such trusts and to and for
343    such intents and purposes as therein mentioned of and concerning
344    the same now I do hereby reserve retain and except out of the said
345    devise to dispose of hereafter as I may think proper all that my
346    Tenement or farmhold called Fowberry Moor Farm the deer park of
347    Fowberry and all such other part and parts of the Manor or reputed
348    Manor of Fowberry in the county of Northumberland as I have not sold
349    and conveyed to Matthew Culley Esquire and also all my parts and
350    shares of and in the several farmholds Lands and Tenements in the
351    County of Durham commonly called the Ayton Estate the same having
352    come by and descended from my Mother Isabel Ayton and subject to
353    such reservation I do hereby confirm the said devise so made to the
354    said Earl Grey and William Alder upon the several trusts respecting
355    the same and I do hereby give and bequeath unto my Son Robert
356    the further sum of two thousand pounds in addition to the provision
357    made for him by my said Will which with the sum of two
358    thousand pounds secured or intended to be secured by Bond as
359    mentioned in my said Will and the sum of four thousand pounds
360    already
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361    already paid to him and for which he has granted releases and the sum
362    of two thousand pounds left to him by the Will of my late Sister Isabella
363    Blake make together the sum of ten thousand pounds and is in full of
364    the provision intended for him and I do hereby give and bequeath
365    unto my daughter Isabella the further sum of three thousand pounds
366    which with the provision made for her by my said Will and a
367    legacy of one thousand pounds left to her by the last Will of the late
368    doctor Hewitt make together the sum of ten thousand pounds and is in
369    full of the provision or fortune or intended for her and I do hereby
370    give and bequeath unto my Son William the further sum of two
371    thousand pounds which with the provisions made to him by the said Will
372    of my said late Sister make together the sum of ten thousand pounds
373    and is in full of the provision intended for him it being my will
374    and intention that each and every of my children except an eldest Son
375    shall have a fortune or provision made for them to the extent of
376    ten thousand pounds a piece and not more from whatever source
377    the same may be derived and it is my Will in case my Son Robert
378    shall become an eldest Son by the death of his brother Francis before
379    the legacy of two thousand pounds given by this codicil to my Son
380    William shall become payable then I do hereby revoke the said legacy
381    or bequest so hereby given to my said Son William as he will in
382    such event become entitled to the sum of four thousand pounds instead of
383    two thousand pounds under the said Will of my said late Sister and in
384    case my said daughter Elizabeth and my said younger children Robert
385    Isabella and William or any of them shall die before their respective
386    legacies of four thousand pounds given by my said Will to my said
387    daughter Elizabeth and of two thousand pounds given by this my codicil to
388    my Son Robert three thousand pounds to my daughter Isabella and two
389    thousand pounds to my Son William shall severally become payable then
390    the said legacy of her him or them so dying will lapse and not be or
391    be liable to be raised or paid but it is my will in case any of them
392    so dying shall happen to have any issue lawfully begotten living at the
393    time of their death or born in due time afterwards then the legacy
394    of him her or them so dying shall go to and be paid to such issue
395    respectively it being my intention that such several legacies of four
396    thousand pounds two thousand pounds three thousand pounds and two
397    thousand pounds shall respectively lapse and sink unto the residuum of
398    my estate only when such of the said legatees shall die without
399    leaving legitimate issue as aforesaid and I do hereby declare this writing
400    to be a codicil to my said Will and to be accepted and taken as part
401    thereof as fully and effectually to all intents and purposes as if the
402    same had been actually inserted therein In Witness whereof I the said
403    Sir Francis Blake have to this Codicil or writing contained in this and
404    the two preceeding sheets of paper set my hand to the first and second
405    sheets and my hand and seal to this third and last sheet thereof the
406    seventeenth day of September in the year of our Lord one thousand
407    eight hundred and eight Francis Blake This writing was signed
408    and sealed by the above named Sir Francis Blake and by him published
409    and declared as a Codicil to his last Will and Testament in the presence
410    of us who in his presence at his request and in the presence of each
411    other have hereunder subscribed our Names as Witnesses Rob[er]t Thompson
412    Hen[r]y Brumell J Lambert
413    Whereas I Sir Francis Blake Baronet have
414    by my Codicil hereinbefore written and duly executed by me bearing
415    date the seventeenth day of September one thousand eight hundred and
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416    and eight given unto my Son Robert the further sum of two thousand pounds
417    in addition to the provision made for him by my Will refered to by such
418    Codicil and unto my daughter Isabella the further sum of three thousand
419    pounds and unto my Son William the further sum of two thousand pounds now
420    I do hereby expressly will and declare that the said three several legacies of
421    two thousand pounds three thousand pounds and two thousand pounds so
422    given by my said Codicil to my said three children Robert Isabella and
423    William respectively are given upon and subject to the express condition
424    that they shall have severally granted releases to me of all claims and
425    demands in respect of the residuary estate of my late Father and in
426    case any of them shall neglect or refuse to execute and shall not execute
427    such release then I do hereby revoke and make void the said respective
428    legacy of him her or them who shall not have executed such release as
429    aforesaid and do confirm the legacy of him her or them who shall have
430    executed the same and I declare this writing to be a further and
431    second Codicil to my Will In Witness whereof I the said Sir Francis Blake
432    have to this Codicil or writing subjoined to the former Codicil set my hand
433    and seal this seventh day of February one thousand eight hundred and ten
434    Francis Blake This writing was signed and sealed by the above
435    named Sir Francis Blake and by him published as a further Codicil to his
436    last Will and Testament in the presence of us who in his presence at his
437    request and in the presence of each other have hereunder subscribed our
438    names as Witnesses An[thon]y Lambert James Darling Matthew Hall
439    A Codicil to the last Will and Testament of me Sir Francis
440    Blake of Twizle Castle in the County palatine of Durham Baronet whereas
441    upon the death of my dear daughter Elizabeth Blake Spinster intestate
442    I became intitled as her sole next of kin to all the portion or fortune
443    provided for her as one of my children under and by virtue of my marriage
444    settlement but which it is my wish to sink into the estate charged
445    therewith now therefore I do hereby remove and release the person or
446    persons who for the time being shall be entitled to the estates charged
447    with the said portion or fortune or with any part thereof and also the
448    same estates and every part thereof of and from the payment of the
449    same portion or fortune and of every part thereof and of and from all
450    interest in respect of the same and also of and from all actions and suits
451    in respects thereof to the end and intent that the said portion or fortune
452    may not be raised but sink into the estate or estates charged therewith for the
453    benefit and advantage of the owner or owners thereof for the time being
454    and I do hereby moreover revoke and recall all and every other codicils
455    or Codicil heretofore made by me to my said last Will and Testament
456    Witness my hand and seal this twenty seventh day of February in the
457    year of our Lord eighteen hundred and seventeen Francis Blake Signed
458    sealed and published by the said Sir Francis Blake as and for a Codicil
459    to his last Will and Testament in the presence of us who have subscribed
460    our names as Witnesses in his presence John Renton of the City of Edinburgh
461    Writer to the Signer Joseph Grant of the said City Writer to the Signer Hen[r]y
462    Sprot of the said City apprentice to the said John Renton
463    A Codicil to be added to and adjudged and taken as part of the
464    last Will and Testament of me Sir Francis Blake of Twizle Castle in the
465    County of Durham Bar[one]t whereas my daughter E. A. Stay having some time
466    since by causes sufficient and well grounded I believe separated from
467    her husband and returned to my family where she now resides I am
468    desirous of making some certain provision for her from the time of my
469    decease during the continuance of such separation or until she shall
470    have obtained from her husband by mutual agreement or consent or by
471    due
    [Page 10]
472    due course of Law or otherwise a suitable and adequate separate allowance
473    or provision over and above her present money of two hundred pounds a
474    year now I do by this Codicil give and bequeath to my said daughter
475    one annuity or clear yearly sum of five hundred pounds of lawful
476    british money clear of all deductions whatsoever to commence from the
477    day of my decease if my said daughter shall be then living separate
478    from her said husband and to continue payable to her for her own
479    sole and separate use during such separation by equal half yearly
480    payments and the first half yearly payment thereof to be made
481    within one month after my decease and I subject and charge all my
482    real estate with the payment of the said annuity of five hundred
483    pounds and direct the Trustees of my Will whom I also make Trustees
484    for my daughter of this annuity to pay the same accordingly but in
485    case my said daughter shall be living with her husband at the time of
486    my decease (whereby the said annuity cannot then take effect) and she
487    shall afterwards separate from him then it is my Will that the said
488    annuity shall commence from the day of such last mentioned separation
489    and be paid and payable half yearly during the continuance thereof
490    and so from time to time as such an Event may happen but only during
491    the period of separation it being my will and meaning that the said
492    annuity shall cease from and during the time of the cohabitation of my
493    said daughter with her said husband or from the time she shall have
494    received or recovered from her said husband an adequate and suitable
495    separate allowance or provision by which I mean an allowance or
496    provision equal at least if not superior to the said annuity over and
497    above her pin money and in case a less sum shall be awarded or
498    allowed then I desire that the deficiency may be made good and raised and
499    paid out of my real estate In Witness whereof I have to this codicil
500    set my hand and seal this eighth day of January in the year of our Lord
501    one thousand eight hundred and eighteen Francis Blake Signed
502    sealed published and declared by the said Sir Francis Blake as and for
503    a Codicil to be part of his last Will and Testament in the presence of us who have
504    subscribed our names as Witnesses thereto in the presence of the said Testator
505    Tho[ma]s Wright of Louth house Edin[burg]h Rob[er]t Strachan of Edinburgh Writer
506    to the Signer Jas J Darling of Edin[burg]h Apprentice to the above Rob[er]bt Strachan
507    On the 9th May 1822 Admon with the Will and four Codicils annexed
508    of the Goods Chattels and Credits of Sir Francis Blake late of Twizel Castle
509    in the County of Durham Baronet deceased was granted to Sir Francis Blake
510    Baronet the Son one of the persons intitled to the undisposed residue of
511    the personal estate and effects of the said deceased being first sworn
512    duly to adm[iniste]r dame Elizabeth Blake Widow the Relict and sole Executrix
513    named in the said Will having first renounced as well the probate and
514    execution of the said Will and Codicils as also the letters of Admon with
515    the said Will and Codicils annexed of the Goods of the said deceased as
516    the Relict and one of the persons intitled in the distribution to the
517    undisposed residue of the personal estate of the said deceased as by
518    the Acts of Court appear
519    On the 23rd December 1865 Admon (with the Will annexed) of the personal estate and effects
520    of Sir Francis Blake late of Twizel Castle formerly in the County of Durham but now in the County
521    of Northumberland Baronet deceased who died 2nd June 1818 at Cornhill in the said County of
522    Northumberland left unadministered by Sir Francis Blake Baronet deceased whilst living
523    the natural and lawful Son and one of the next of kin of the said deceased was granted to Helen
524    Blake Widow the acting Executor of the Will and Codicils of the said Sir Francis Blake (the Son) she
525    having been first sworn. Dame Elizabeth Blake the lawful Widow and Relict of the said deceased the
526    sole Executrix named in the said Will having renounced the Probate and execution of the said Will
527    and Codicils No Residuary Legatee being therein named The Right Honorable Charles Earl Grey and William
528    Rowland (in the said Will written William Alder Esquire) the Residuary Legatees in Trust named
529    in the said Will and Robert Dudley Blake the natural and lawful Son also and one of the next of kin
530    of the said deceased being dead Eleanor Ann Blake (formerly Stag) Widow the natural lawful daughter and only
531    other next of kin of the said deceased having been duly cited with the usual intimation but not having in any
532    wise appeared And the said Dame Elizabeth Blake Sir Francis Blake (the Son) Robert Dudley Blake
533    and Eleanor Ann Blake being the only persons entitled in distribution to the personal estate and
534    effects of the said deceased not disclosed of by his said Will