Decree in the Cause of Clerke v. Biddulph,
12th March 1754 [document wrongly renders this as 1753]

[transcribed from HCRO 2M30/340 (Rose Estate)]

Thursday the 12th day of March in the 27th year of the reign of his Majesty King George the 2nd 1754 between:

Benjamin Clerke Esq. & Joseph Jarvis Clerke, an Infant by the said Benjamin Clerke his Father and next Friend, Plaintiffs

Michael Biddulph and Mary his wife, Joseph Clerke, George Jarvis Tapps and Sarah Greenhill, Agnes Greenhill widow, Mary Buck widow, Richard Buck and Timothy Tapps Buck, Lydia Hicks widow, William Dale clerk, Richard Fishlake clerk, Anthony Webster, Thomas Brome, James Marsh, Francis Blake Delavell Esq. and Isabella his wife, James Stevens and his Majesty's Attorney General, Defendants.

This Cause having received a hearing of the 25th Day of July last before the Right Honourable the Lord High Chancellor of Great Britain in the presence of Council learned on both sides and the Scope of the said Plaintiffs' Bill being that the suit and proceedings in the cause in relation to the Trusts of the will of Sir Peter Mews deceased might be revived and the decree therein mentioned carried into execution, and that the will of Dame Lydia Mews therein also mentioned might be declared to be well proved and carried into execution, and that the defendant, James Stevens, might forthwith account for and pay the balance in his hands as this Court should direct and that the rest of the defendants might account for what they had severally received out of the Personal Estate of the said Testatrix, and that the Tythes and Leasehold Estates therein mentioned might be sold and the money arising together with other the personal estates therein also mentioned might be applied to discharge the several Trusts under the wills of the said Sir Peter and Dame Lydia Mews and all the several debts and Incumbrances affecting the Real Estates therein mentioned to be devised to the plaintiffs that a Receiver might be appointed to receive the Rents and Profits of the Tythes, Leasehold Houses and other the Personal Estate therein mentioned, and that out of the money arising thereby the said Receiver might from time to time pay the Interest of the several sums therein mentioned as the same should become due until the several estates in the pleadings mentioned could be sold.

The said Plaintiffs by the Bill, amongst other things charging:

  • that the said Sir Peter Mews deceased by his will dated the 22nd of April 1725 gave unto his wife the said Dame Lydia Mews and Doctor Thomas Rivers £2000 to be laid out in the purchase of Estates in the County of Southampton, Wiltshire and Dorset, or one of them, and to settle the same in Trustees and pay yearly free from outgoings £20 to the Curate of Holdenhurst, in the like sum yearly unto the Curate of Milton, in the like sum yearly unto the Curate of Lymington, and the like sum yearly to the Curate or Minister of the intended new Chapel of Hinton Admiral and until such purchase the said four several sums should be paid by his Residuary Legatee of his Real and Personal Estates as therein mentioned, and he gave unto the said Dame Lydia Mews and Doctor Thomas Rivers £300 to erect a Chapel in the tything of Hinton Admiral and after several pecuniary legacies for payment thereof he charged all his Real and Personal Estate, the residue of his Estates, he gave to his wife the said Dame Lydia Mews her Heirs and Assigns for ever;

  • that the said Sir Peter Mews died on the 19th [March] 1725 on whose death the said Dame Lydia Mews proved the said will and possessed herself of all his Real and Personal Estate and brought her Bill against Gabriel Ascough clerk, William Smith clerk, and Richard Fishlake clerk (the then three curates of the parishes of Holdenhurst, Milton and Lymington) and His Majesty's Attorney General;

  • that by a Decree made on hearing of the said Cause the 5th of July 1733 it was ordered that all parties should be at liberty to propose before Mr. Edwards, one of the masters of this Court, a proper purchase or purchases of Lands of Inheritance in fee simple in the Counties of Southampton, Wiltshire or Dorset wherein the sum of £2000 mentioned in the will of Sir Peter Mews might be invested, and when such purchase should be found, that the said £2000 should be invested therein by the said Dame Lydia Mews with the application of the said Master, and the Estate so to be purchased to be conveyed to Trustees upon the Trusts mentioned in the will of the said Sir Peter Mews, but in case the yearly profits of the Land to be purchased should not amount to the sum of £80 then there was to be a perpetual abatement out of each of the four £20 and until the said £2000 should be invested in lands as aforesaid the said Dame Lydia Mews was to pay the arrears and growing payments of the said £20 a year to the Curate for the time being of Holdenhurst, Milton and Lymington, and to the Minister or Curate of the intended new chapel of Hinton Admiral;

  • that the said Dame Lydia Mews made her will the 20th June 1727 and thereby directed to be buried at North Mimms and that there should be distributed amongst the poor of the said parish £10 and gave £200 to be laid out in the purchase of lands in fee simple to be settled so as the Rents and Profits thereof should be applied in buying Bread to be distributed every Sunday by the Minister or Church Wardens as should attend the service of the Church and till such purchase her Executors and Trustees should pay interest for the said sum of £200 after the rate of £4 per cent to be distributed as the Rents and Profits of the Lands would go if purchased, and also gave to the Minister of Christchurch in the County of Southampton £50 to be distributed by him amongst the poor of the same parish, and the said Testatrix devised her manors, messuages, lands in the County of Southampton and all other her lands and Hereditaments in the same County whereof she should be seized in Fee at her Death (other than and except the manor of Christchurch and Hinton Admiral and all her farm lands, tenements, rents and hereditaments in Christchurch and Hinton Admiral aforesaid whereof she was seized in fee simple and also a rent charge of £40 a year lying out of Linton Grange in the County of York and her copyhold land in the County of Middlesex which she had surrendered to the use of her will and also the lease of the parsonage of Christchurch aforesaid and all other her messuages, lands and hereditaments whatsoever whether freehold, copyhold or leasehold (except as aforesaid) unto Peniston Lamb in Trust that he should sell the same and apply the money arising by such Sale towards the payment of the Debts and Legacies of her Husband, and afterwards for payment of the Debts she should have at her Death out of the legacies given by her Will or by any Codicil to be after made, and to pay the residue of the money arising by such sale to her nephew Jarvis Clerke Esq. for his own use and benefit; and the said Testatrix bequeathed the yearly sum of £20 free of all taxes to Peniston Lamb during the joint lives of Mrs. Mary Beresby [Reresby?] and her Father Mr. Nasland to be paid by half-yearly payments, In Trust to pay the same to the said Mary should appoint and in default of such appointment to pay the same to the said Mary during such Joint lives; and the further annuity of £50 free from taxes unto the said Peniston Lamb during the life of her neice, Sarah Greenhill, In Trust for the said Sarah Greenhill in like manner; and also the further annuity of £10 free from taxes unto the said Peniston Lamb during the life of Jane Lyde, In Trust for the said  Jane Lyde; and directed that the said three several annuities should be issuing and paid out of her manor of Christchurch and all her farms, lands and hereditaments in Christchurch aforesaid, and thereby charged the said manors, lands and hereditaments with the payment of the said several annuities respectively, and bequeathed the manors of Christchurch and Hinton Admiral and all the lands, tenements and hereditaments in the several manors, towns, parishes or territories of Christchurch and Hinton Admiral aforesaid in the said county of Southampton whereof she was seized in fee [simple] with their appurtenances (subject as to the premises in Christchurch to the said several annuities) unto her nephew Jarvis Clerke for life, Remainder to the first and other sons of the said Jarvis Clerke in Tail Male, Remainder to the plaintiff by the Description of her nephew Benjamin Clerke for life, Remainder to the first and other sons of the said plaintiff Benjamin Clerke in Tail Male, Remainder in like manner to the Defendant Josepeh Clerke, Remainder to her own Right Heirs; and the said Testatrix gave all her Personal Estate other than such part as was otherwise disposed of unto the said Lamb in Trust to apply the same in payment of her Funeral Expenses, the Debts and Legacies of her said late husband, and of her own Debts and Legacies so far as the same would extend; and appointed the said Peniston Lamb executor of her said will;

  • that the said Dame Lydia Mews by a Codicil to her said Will, dated 4th September 1731, reciting that she had by her will given to Elizabeth Barbridge the annuity of ten pounds and that the said Elizabeth had married Charles Copedock, and declared the said annuity of £10 should be paid to the said Elizabeth Copedock during her life to her separate use;

  • that the said Dame Lydia Mews having occasion for £4,000 borrowed the same of John Coke Esq., and for securing the repayment thereof did by Indenture of Mortgage dated the 3rd of March 1728 charge the same upon the manors of Christchurch and Hinton Admiral and the farms, lands, tenements and premises in the said County of Southampton and which mortgage by several mesne assignments was become vested in the Defendant Francis Blake Delavell in right of the Defendant Lady Isabella his wife, and which said principal sums of £4,000 then remained due to them with a considerable arrear of Interest;

  • that the said Lady Mews being minded to alter her Will touching the disposition of her Personal Estate left a paper signed by her wherein she gave several Directions as to her Burial and thereby gave several Legacies to different persons;

  • that the said Testatrix died about the 6th day of April 1751 without altering her said will of 20th day of June 1727 with respect to the devise of her said Real Estate, and Jarvis Clerke, the Plaintiff Benjamin Clerke's brother, died without issue male, and also the said Peniston Lamb in the lifetime of the said Testatrix, so that the Plaintiff Benjamin Clerke on her death by virtue of the Limitations in the said Will being entailed to the said Real Estates during his life, with Remainder to the Plaintiff Joseph Jarvis Clerke the Infant, as the eldest son of the said Plaintiff Benjamin Clerke in Tail Male;

  • that soon after the Death of the said Testatrix, the Defendants Agnes Greenhill, Mary Buck, Richard Buck and Timothy Tapps Buck (the two sons of the said Mary Buck) insisting that the said Testatrix had by the said writing or Testament Schedule duly appointed them her executors, and after payment of the specific legacies therein named the residue of her Personal Estate was given to them, and that they proved the same and possessed themselves of all the Personal Estate of the said Testatrix;

  • that the several Real Estates devised by the said will of the said Testatrix to be sold, or the greatest part thereof to be sold, by the said Testatrix in her life time, and several of the Debts and Incumbrances of the said Sir Peter Mews were thereby paid off and discharged; but the said £2,000 given by the Will of the said Sir Peter Mews to be invested in Trustees and afterwards decreed to be laid in lands, and also the said £300 for erecting a Chapel still remain unpaid;

  • and the said sum of £4,000 so due to the said Defendants Francis Blake Delavell and Lady Isabella his wife, together with the said £2,000 and £300 ought to be discharged out of the Personal Estate of the said Dame Lydia Mews, and the Real Estates devised to the Plaintiffs to be discharged therefrom, and the said Personal Estate ought to be applied in the first place to pay the Debts and Incumbrances of the said Testatrix, and also to pay the several legacies given by her said will and the Trusts of her said will ought to be performed;

  • and the Defendants the Coheirs at Law of the said Testatrix Dame Lydia Mews did make such will and paper writing or Testamentary Schedule, but insisting that it appeared doubtful to them whether the Plaintiff Joseph Jarvis Clerke was the legitimate son of the Plaintiff Benjamin Clerke or not; upon debate of the matter and hearing what was alleged by Counsel on both sides it was ordered that the parties should proceed to a Trial at Law in the Court of King's Bench in London, at the Sittings after the then next Term or at such time as the Lord Chief Justice of that Court should appoint, upon the following issue:

    • whether the Plaintiff Joseph Jarvis Clerke was the legitimate son of the Plaintiff Benjamin Clerke;

    • and the said Plaintiff [Joseph] Jarvis Clerke the Infant was to be Plaintiff at Law;

    • and the Defendants Joseph Clerke and the Defendants Michael Biddulph and Mary his wife, Sarah Greenhill, and George Jarvis Tapps (the Coheirs at Law of the Testatrix Lady Mews) were to be defendants, who were forthwith to name an attorney to accept a ____[?] appear and plead to Issue;

    and it was thereby referred to Mr. Eld, one of the Masters of this Court to settle the issue in case the parties differ about the same, and his Lordship did reserve the consideration of all further directions until after such Trial should be had, and any of the Parties were to be at liberty to apply to the Court as there should be occasion;

  • that in pursuance of the said Order the said Issue was tried on the 15th of January [1754] but when a verdict was found that the said Joseph Jarvis Clerke is the legitimate son of the said Benjamin Clerke;

and this cause coming this present day to be heard before his Lordship on the Equity reserved the said order on hearing in the presence of Counsel learned on both sides upon opening and debate of the matter and hearing

and the proofs taken in this Cause read and of what was alleged by the Council on both sides his Lordship doth declare

  • that the Will of the said Testatrix Dame Lydia Mews is well proved and ought to be established and the trusts thereof performed and doth order and decree the same accordingly,

  • and that the former decree of 5th July 1735 be revived and performed, and all the Directions therein contained be carried into execution between the parties to this Suit in like manner as the same ought to have been between the original parties in the former Cause,

  • and it is further ordered that the Plaintiffs in this Cause and the several Curates mentioned in the former Cause and the Defendant the Attorney General be at liberty to lay before Mr. Edwards, one of the Masters of this Court (to whom the said former Cause stands referred), a scheme or schemes relating to the erecting the Chapel mentioned in the said Sir Peter Mews's Will, also to the disposition and application of the sum of £300 directed by the said Testator's Will to be laid out in erecting the said Chapel in case the same shall not now be proper to be erected, and the said Master is to state the same with his opinion thereon to the Court, whereupon such further order shall be made as shall be just,

  • and it is further ordered that the said Master do take an account of the Personal Estate of the said Testatrix Dame Lydia Mews not specifically bequeathed which has been received by any of the Parties or by any other person by their or any of their order, or for their or any of their use, and that the said Master do also take an account of the said Testatrix's Debts, Funeral Expenses and Legacies, and also an account of the Debts and Legacies of the said Sir Peter Mews her late husband remaining unpaid at her Death,

  • and it is further ordered that the said Testatrix's Personal Estate be applied in the first place in payment of her Debts and Funeral Expenses in a course of administration, and afterwards in payment of the Debts and Legacies of the said Sir Peter Mews remaining unpaid at her Death, and of her own Legacies Pari Passu,

  • and it is further ordered and decreed that the said Testatrix's Leasehold Estate be sold with the approbation of the said Master to the best Purchaser or Purchasers that can be got for the same, wherein all proper parties are to join as the said Master shall direct, and all Deeds and Writings relating to the said Estate in the custody or power of any of the parties are to be produced before the said Master upon oath,

  • and it is further ordered that the money arising by such sale be applied in like manner as the rest of her Personal Estate is hereinbefore directed to be applied, and that the several specific legacies given by the said Testatrix's Will be delivered to the respective Legatees according to her Will,

  • and as to the Legacy of the said Testatrix's best Diamond Ear Rings and a Diamond Ring of One Stone for the Little Finger, His Lordship doth declare that the same are bequeathed by her Codicil or Testamentary Schedule to the Defendant Lydia Hicks by the name of her niece Lydia Clerke,

  • and as to the sum of £200 given by the Will of the said Testatrix Dame Lydia Mews to be laid out in a purchase of lands for the benefit of the poor of the parish of North Mimms, it is further ordered that the said sum of £200 be laid out accordingly in the purchase of lands with the approbation of the said Master in the names of Trustees to be approved by the said Master, and in the meantime it is further ordered that Interest be paid for the same at the rate of £4 per cent per annum according to the directions of the said Testatrix's Will, and the Minister and Churchwardens of the said Parish of North Mimms are to be at liberty to lay a scheme before the said Master for establishing and carrying the said Charity into execution, and the said Master is to state the same with his opinion to the Court, whereupon such further order shall be made as shall be just,

  • and if there shall be any surplus of the said Testatrix's Personal Estate, it is further ordered that the same shall be paid to the Defendants her Residuary Legatees, but in case the funds before mentioned shall not be sufficient to pay all the said Testatrix's Debts and Legacies and all the Debts and Legacies of the said Sir Peter Mews remaining unpaid at her Death, it is further ordered that then any of the Parties be at liberty to apply to the Court touching the making good the Deficiency out of the said Testatrix's Real Estate liable thereto,

  • and it is further ordered that the Plaintiff Benjamin Clerk, the Tenant for Life of the said Testatrix's Real Estate, to pay the arrears and keep down the growing payment of the several annuities charged thereon during his lifetime, and if the Plaintiff shall make default in payment thereof, it is further ordered that any of the Annuitants be at liberty to apply to the Court for directions touching the same,

  • and it being admitted by the Parties that the Receiver of the Leasehold Estate has now in his hands more than the sum of £500, it is further ordered that the said Receiver do pay the sum of £500 out of the Rents and Profits of the said Leasehold Estate in his hands to the Defendant Francis Blake Delavell in part satisfaction of the arrears of interest due on his mortgage upon the Real Estate, and that the Plaintiff Benjamin Clerke do pay unto the said Defendant Delavell the Residue of the Arrears of Interest due upon his Mortgage at or before the end of six months from this time, or in default thereof it is further ordered that the said Defendant Delavell be at liberty to apply to the Court for a Rec~ of the mortgaged premises,

  • and for the better clearing of the several accounts before directed, all parties are to produce before the said Master upon oath all books, papers or writings in their custody or power relating thereto, and are to be examined upon Interrup[?] as the said Master shall direct, who in taking of the said accounts is to make unto all parties all just allowances, and it being admitted that the Defendants the Bucks, the Residuary Legatees named in the said Testatrix's Testamentary Schedule, have brought a Cross Bill for an account of the Personal Estate which is hereinbefore directed, it is by consent of all parties further ordered that that Bill do stand dismissed out of this Court, and that the costs of that Suit be taxed by the said Master and added to the costs in this Cause,

  • and it is further ordered that the Defendant Delavell be paid his costs of this Suit to this time, and their costs at law to be taxed by the said Master, that is to say so much of the Costs of this Suit in this Court as related to the Real Estate and the Costs at Law out of the Real Estate, and in case the Plaintiffs shall not pay them in a month after the taxation thereof, it is further ordered that then any of the parties be at liberty to apply to the Court for raising the same, and that the rest of the costs of this Suit be paid out of the Personal Estate, and his Lordship doth reserve the consideration of subsequent costs and all further directions until after the said Master shall have made his Report, and any of the parties are to be at liberty to apply to the Court as there shall be occasion.