SIR Richard Hansard seised in Fee of the Mannor of Lifford in Ireland, and of divers Lands thereunto belonging, by his Deed bearing date the 6 of Octob. 6 Octobr. 16 Jacobi. 29 Septembris, 17 Jacobi. 16 Jacobi, made a Lease to Sir George Marbury and Thomas Perkins, from the death of the said Sir Richard, for the life of Dame Anne his wife, and for Nine yeers after, in trust, to employ the profits to such uses as Sir Richard should by his last Will appoint.

Sir Richard Hansard having taken some displea­sure against William Hansard his Brother and Heir apparant, made his last Will, and thereby gave di­vers yeerly Sums, amounting in the whole to 86 l. per annum to divers charitable uses; all which Sums [Page 10]he willed to be paid for ever by his Heirs, out of his Freehold-Lands, and to begin after his Debts paid, &c. with this further Clause, ITEM, I give, infeoff, and confirm, after Funerals, Buildings, and Le­gacies paid and performed, and two yeers after the said Dame Hansards decease, All my estate, right, &c. in all my houses and Freehold-Lands, to the sole and proper use and behoof of John Hansard the yonger, son of John Han­sard the elder of Ouslaby, for life; then to the use of John Hansard his son, and the Heirs males of their two bodies lawfully begotten: and for want of such Heirs males, the estate and inheritance shall descend and divolve to the pro­per use and behoof of Robert Hansard of London, Gent. and the Heirs males of his body lawfully begotten; then to the use of William son of Robert Hansard, &c.

Then deviseth two Acres to Richard Perkins and his heirs; the like to Mansfield; and the said Land to be allotted out by the Executors, and those estates to be established by his Executors: and of his said Will, did make his Wife, Sir George Mar­bury, Sir John Vaughan and Thomas Perkins Execu­tors; to whom by the said Will, he giveth certain Leasehold-land.

Sir Richard Hansard dies: and inasmuch as there was no Feoffment before to the uses of his last Wil, and the Lands not there deviseable, the Fee and In­heritance descended to the said William Hansard, brother and heir of the said Sir Richard.

2 Augusti. 21 Jacobi. William Hansard, the brother and heir at law, for 1480l. by Indenture grants the premises to the said Sir George Marbury and Thomas Perkins, and their heirs, and to the use of them and their heirs; for [Page 11] 6 Maii. which they the said Foeffees covenanted to per­form the pious Requests of the said Sir Richard, and were bound to Recognizance so to do.

Sir George Marbury and Thomas Perkins, for the sum of 493l.—6s.—8d. grants part of the premises to the said Sir John Vaughan & haered. to the proper use of the said Sir John and his heirs; Reserving neverthelesse particularly the third part of such payments as by the last Will of the said Sir Richard were reserved to be paid for the charitable uses, with a Covenant by Sir John, for the contribution to a third part of the said charitable uses.

All this appearing upon proof in Chan­cery, a Decree was conceived, but not drawn up for the purchasers against the pretended devisers of the Inheritance.

John Hansard and his son dies without issue.

Upon Petition preferred to His Majestie on the behalf of William, son and heir of Robert Hansard, surmising a Feoffment to have been made by Sir Richard to the said Sir George Marbury and Thomas Perkins, and their heirs, to the use of the said Sir Richard and his heirs, and of his last Will, and set­ting forth the request of these charitable uses; and that aswell the Petitioner, who is thereby suppo­sed to be right heir of the said Sir Richard, as also the pious uses, were frustrated by the Executors.

The King refers the consideration of the said Cause to the Lord Deputy, to the end that if the Cause be such as requires relief in this kinde, his Lordship might take further order, &c.

Upon this Reference, the Lord Deputy with­draws and overthrows the proceedings in Chance­ry, and with the assistance of the Chief Justice of the Common-Pleas and Chief Baron of Exche­quer reciting the Lease, the Will and several passa­ges between the Executors, and the pretended De­visees, and William Hansard the heir, and Robert Da­vies, The presumption and supposition of a Feoff­ment; and that the moneys for the purchase were raised by the Executors, and of the profits of the Land and personal Estate of Sir Richard; and that the said Executors were aswell trusted for Hansard the Devisee, as for the pious uses; and their breach of trust, by giving notice to William Hansard the Heir, of his Title; and by compounding with him, Awards that Sir John Vaughan, and the heirs of the other Executors, receiving the moneys by them paid to William Hansard, and Robert Davies not satisfied by the profits and personal estate of Sir Richard, should convey the premises to persons nominated by the said Petitioner, to the uses limit­ed by the Will; and that the Defendants should be answerable to the Petitioner for the surplusage of the profits by them received above such their ex­pences; and a Commission to issue for the ascer­taining thereof.

By an Order reciting the last mentioned Order, and an Order for the setling of the possession of the premises, and conveying thereof, and of all the Defendants estate therein, unto the Complainant, and for the delivering of Evidences, and for the payment of 465l. —8s. by Sir John Vaughan to the [Page 12]Plaintiff, and another Order for the Sequestration of the Rents of the premises, and reciting the Plaintiffs minority, and several Sums of money expended and furnished in his behalf in the said Suit, by Robert Bradbury, Sara his wife, Hercules Geilds­land, and Thomas Greene; It is by the like assistance ordered that the premises shall be performed, the Lands conveyed to Edward Stanhope and George Wal­ker, by a deed thereunto annexed, unto the uses therein expressed. It is further ordered, that Ed­ward Torleton shall be the Plaintiffs Steward and Sollicitor, cum feod' Anni 10l. Thomas Greene shall be Bayliff, cum feod' Anni 10l. Bradbury and his wife shall receive their Bill of Disburments, viz. 386l. together with a yeerly Pension out of the Lands:Brave Encou­ragements for Champetters and Maintai­ners. Thomas Greene shall receive his Bill of Dis­bursements, viz. 65l.—18s. and also 17l. Hercu­les Geildestand shall receive his Bill of Disbursments, viz. 287l.—7s. and for the recompence of his pains and prosecution, 10l. Annuatim during the Plaintiffs minority. The premises to be paid out of the profits of the premises formerly sequestred, or to be raised by the Feoffees, the surplusage of the profits to be disposed by the Lord Deputy for the Plaintiffs benefit.

Now the Deed was expressed to be to the use of Stanhope and Walker for Seven yeers, for the performance of the purposes appointed in the De­cree; and then to the use of William the Plaintiff in tail, the Remainders over pront in the Will.

Upon this Case, these things are to be admitted.

• 1. That there was no Feoffment by Sir Richard to the use of his last Will.
• 2. That the Lands at the time of the Devise and death of the deceased, were not devise­able by Statute or Custom.
• 3. That upon the Conveyance by William Han­sard to the Executor & his Release, provision is made for the charitable uses in the Will, but not for the Hansards, or the bequest to them.

The Questions therefore upon the Case will be of two kindes.

• 1. Concerning the right of the Hansards in Law or equity.
• 2. Concerning the Judicial proceeding there­upon.

Upon the Right these several Questions have been propounded.

• 1. Whether the Devise being void in Law, shall yet charge the Land descended to the Heir with any trust or equity for the Hansards.
• 2. Admitting it doth; whether the Executors of Sir John Vaughan, having notice thereof, and purchasing the Land for a valuable considerati­on, are charged with that trust.
• 3. Admitting it doth not charge the Land in the hands of the Heir; yet when the Land comes to the Executors by purchase, being persons intrusted by Sir Richard for performance of his Will; whether they are chargeable with any trusts for the Hansards.
• 4. Admitting they are; who shall be answered [Page 15]for the measne profits taken by Executors in the life-time of the predecessor of the Plain­tiff?

Upon the proceeding, these matters have been moved and are enquirable:

• 1. Whether upon a Reference from His Maje­stie, the Lord Deputy and two Judges may de­termine a right of Free-hold, or any equitable matter concerning the Cause, without both par­ties consent, the Suit depending in Chancery.
• 2. Admit he may; whether the proceedings of the Lord Deputy be warranted by the Kings Direction or no.

To the First: As the Devise is void in Law to passe any use already created, there being no Feoff­ment to uses, or to passe the Land (the same being not deviseable:) so it is in it self void to raise or create any trust or use remediable in equity against the Heir of Sir Richard for the Hansards.

• 1. Because the intent of the Devisor was by the Will to passe the Land it self either to the Hansards themselves, or else to the Executors to the use of the Hansards; and not to raise a use out of the estate descended to the Heir: for that was not the thing willed by the Devi­sor, as appears by the Devise: and the Rule is generally true in all Laws, Si non valeat quod ago ut age, non valebit ut valere potest.
• 2. Although it were admitted that the Hansards were of the blood of the Devisor (which ap­pears not) yet this Devise meerly voluntary, and depended onely upon the Will of the De­visor; [Page 16]there being no precedent valuable con­sideration on the part of the Hansards, to draw out the estate or use from the Devisor, but one­ly the bare Will of the Devisor: therefore if the Law be against the Devisees for the passing of the Land by the Will, which was the thing intended by the Devisor; Equity will not speak for them to create a trust for their bene­fit, which was not intended, unlesse the Land had passed; for the equity in this case follows the Law.
• 3. Although a Will may transfer a use already in esse, or by transferring the Land where it is deviseable, may create a use out of the estates transferred; yet it cannot originally and im­mediately charge the possession descended to the heir, with a use or trust, especially upon a meer voluntary act.
  • 1. Because it is no Deed.
  • 2. The heir regularly cannot originally be charged by the Ancestor with a use or with a trust, if the Ancestor, or the Land in the life of the Ancestor, were not bound or charged.

Therefore Equity speaks for the heir, to whom both Law and Equity gives the Land, if not dispo­sed, rather then from the Hansards, to whom the Testator would have given it, but indeed did not. For these Reasons, but especially the two former, I conceive the heir not chargeable with any use or trust.

As to the Second Question: If it be admitted that the Lands in the hands of the heir of Sir Ri­chard be charged with such a trust or use remedia­ble in equity; then the Executors and Sir John Vaughan having notice thereof, shall be bound to execute the trust, notwithstanding the money paid by them.

As to the Third: If it be admitted that the heir of Sir Richard, or the Lands in his hands, are not cha [...]geable with any trust or use remediable in e­quity; then, although the Lands come to the Ex­ecutors as in the Case, yet they are not chargeable to execute any trust for the Hansards. My Rea­sons are these.

• 1. Because the Executors come to the Land un­der the heir, who was not chargeable with any trust; therefore not the Executor, no more then if a meer stranger had purchased the same.
• 2. Although their persons were trusted for the performance of so much as was in their power, viz. for the administration of his goods, and the disposing of the profits of the Land during the Lease for nine yeers, according to the Will of the deceased; yet as to the Inheritance, they were not intrusted: for as it was not ex­presly devised to them; so if it had, yet it pass­ed not to them, but descended to the heir dis­charged of any trust.
• 3. There being no trust or use attaching upon the Land of the Devisor, but the limitation of the [Page 18]Testator being in all points void, it is impossi­ble that the Quality of the persons to whom it comes afterwards, should create a trust or use which had never a being before.
• 4. As they were not trusted by the Testator with the Land; so there was no trust at all for the Hansards upon the purchase by the Exe­cutors.
  • 1. Although by the expresse agreement of William Hansard the heir, they were char­ged for the pious uses; yet not a word of any trust for the Hansards.
  • 2. They paid a valuable consideration, which, for any thing appears, was their own money, and not money raised by them out of the goods or profits of the land of the deceased.
  • 3. If it were raised of the profits of the Lands or Goods of the deceased, yet that is nothing to the Hansards; for they were not entrusted with any the goods or profits during the Nine yeers, or o­therwise for the benefit of the Hansards: and as they did not, so had they no rea­son to employ the Testators goods for the benefit of Strangers rather then for Themselves.
  • 4. The several Treaties of the Hansards, receives a sufficient Answer, and doth not any way impeach the estate of the Executors.

For the Fourth: Admitting the Executors [Page 19]were chargeable, yet they are not bound in Law or equity (as I conceive) to be answerable to the Plaintiff for any measne profits taken.

• 1. Before the expiration of the Nine yeers.
• 2. Before the death of Jo: Jo: and Robert Han­sard the Plaintiffs father: for they belong not to the heir, because onely Chattels; nor to the Executors, because never rested in the Testa­tor.

Upon the Questions for the Judiciary Proceedings.

• 1. The determining of matter of Freehold in such an extraordinary Award, upon a Petition without the consent of both Parties, where the form of proceeding anciently setled in England or Ireland, as by the Record of those times may ap­pear.
• 2. If it were true, yet this Petition and this An­swer I conceive to be no warrant to proceed in this manner.

1. Because it appears that the very ground of the Petition was false principally in these points.

• 1. There was no such Feoffment to uses as therein is pretended.
• 2. There was no perverting or neglecting of the charitable uses declared by the de­ceased.
• 3. The Petitioner was not heir to the decea­sed Sir Richard Hansard, as is therein pre­tended.

2. Because there was no Commission thereupon given by His Majestie to proceed; unlesse the [Page 13]Cause were such as required relief in such a kinde which refers to the truth and quality of the Surmises of the Petition, viz. if false, or remediable elsewhere, the Answer warrants not the proceeding.

3. Admitting the Cause required relief in this kinde, yet upon the last Decree there is cause of appeal: for besides the inserting of allow­ances and rewards for such who were no par­ties to the Suit and whole prosecution and dis­bursments on the Petitioners behalf, were not warranted by Law. The Appellant also is thereby bound to make a Feoffment to the uses of the Decree during the Petitioners minority. And if the Appellant should be questioned by the Petitioner at his full age again for breach of Trust in making such conveyance to such uses; I see not how the Petitioner should be bound, or the Defendant secured by this Decree, in respect of the said payments to be made to the Strangers.

7 Decembris, 1638.

IT is this day Ordered by the Commons assembled in Parlia­ment, That the Remonstrance of the Committee of Adventurers for Ireland concerning Sir Frederick Hammiltoun, with the Papers anne­xed, be recommitted to the Com­mittee of both Kingdoms, to take them, and likewise the Petition in Master Vassals hand concerning [Page 35] London-derry, into speedie conside­ration, and to bring a Report into the House, with an opinion what is fit to be done upon the whole.

Hen. Elsynge, Cler. Parl. D. Com.