1840. DOE d. DUNNING V. CRANSTOUN. of my surviving my wife, to my nearest collateral heir Exch. of Pleas, male of the name of Dunning, to hold the same to him and the heirs male of his body for ever, whom failing, to his collateral heirs male for ever; and to prevent all mistakes, I declare that by the phrase 'collateral heir male,' I intend to denote a person whose consanguinity with myself can be traced altogether through males alone, without counting his pedigree in any case through a female; and I declare it to be my wish that, as soon as conveniently may be after my death, an advertisement may be three times inserted in two of the principal London newspapers, aad may also be three times inserted in some newspaper published in the city of Exeter, for the purpose of calling on all persons bearing the name of Dunning, who may consider themselves entitled to benefit by this devise, to appear for their interest and produce their respective claims. And if no person can produce a valid claim within three years after the insertion of the said advertisement in the newspapers, in that case I hereby revoke this special devise of the lands situated in the aforesaid three parishes, and declare that the said lands shall be deemed to be included in the general devise of my lands situated in the county of Devon, which is hereinafter inserted. And whereas it appears to me, that the residue of the lands which I hold in the county of Devon was never held by any of my ancestors in the male line more remote than my father, by whom indeed the greatest part of the said lands was acquired by purchase: I therefore do not consider that any remote and unknown heir male of the name of Dunning, as such, possesses any claim upon the said residue of my lands, of such a nature as in reason, conscience, or equity, to call upon me to respect it; and I therefore strictly confine and limit what I am doing in behalf of such a remote heir male within the bounds of the parishes of Walkhampton, of Buckland Monachorum, and of Meavy aforesaid. Whereas 1840. DOE d. DUNNING บ. CRANSTOUN. Exch. of Pleas, by the death of my father's only sister, Mrs. Mary Dunning, I am now become, to the best of my knowledge and belief, the only existing descendant of my great grandfather in the male line, John Dunning, who died, if I am not mistaken, in the reign of Queen Anne; I therefore consider it impossible that any person should exist so nearly related to me on the side of my father, either through female or mixed consanguinity, as to possess any claim upon my property, of such a nature as to make it incumbent on me to respect it. And whereas the fortune that was brought to my father in marriage to my mother, amounting to £10,000 sterling, was much more than repaid to my mother by the sums which she received during the latter part of her life, in consequence of the additions which I made to her income when I reached the age of twenty-one years; I therefore do not consider that any persons related to me through my mother possess, merely as such, any claim upon my property which it is at all incumbent on me to respect, any further than I may voluntarily think fit so to do, of my own free choice. Considering, therefore, all these facts, and considering moreover that my title as a peer of Great Britain will become extinct at my decease, if I never have a son, I think myself fully authorized, not only in point of law, but in point of conscience and reason, to dispose of my property as I think fit in my voluntary choice to do, excepting so far as the claims of my wife, in the event of her surviving me, and the claims of a remote male heir, if any such person should exist, to the ancient and patrimonial part of my landed property, are respectively concerned, for both of which I have hereby already provided. Wherefore I give, bequeath, and devise all my freehold lands, manors, estates, and real property whatever, situate in the county of Devon, excepting only, in case of the existence of a collateral male heir, those lands which are situated in the parishes of Walkhampton, 1840. DOE d. DUNNING V. CRANSTOUN of Buckland Monachorum, and of Meavy, from and after Exch. of Pleas, the death of my wife, first, to the Right Hon. James Lord Cranstoun, to hold and enjoy the same for the term of his life:"-with remainders over to four other persons for life, bequeathing the ultimate reversion in fee to the survivor of them. The testator then gave and bequeathed all his leasehold manors and estates to his wife Lady Ashburton, to hold and enjoy the same until his interest in the said leasehold expired; but in case his wife died before that period, he then devised the same over. And the said Richard Barré Baron Ashburton did, by his said will, appoint his wife, Anne Selby Lady Ashburton, his sole executrix; and died without issue, and without having revoked or altered his said will, on or about the 22nd day of March, 1823, leaving his widow, the said Anne Selby Lady Ashburton, surviving him. At the time of the making of the said will, and from thence to the time of his death, the said Richard Barré Baron Ashburton was in possession of the said leasehold lands included in the consent rule as aforesaid, and held the same for the residue of a certain term of 1000 years, which was created by an indenture, bearing date the 23rd day of December, 1650, made between Elize Chrymes of the one part, and Willmotte Dunning, widow, of the other part, whereby the said Elize Chrymes demised the said lands to the said Willmotte Dunning for the term of 1000 years from thence next ensuing, without impeachment of waste, yielding and paying, at the feast of St. Michael yearly during the said term, unto the said Elize Chrymes, his heirs and assigns, five shillings, if it were lawfully demanded; and also the said Willmotte Dunning, her executors and assigns, doing suit at the two law courts of the said Elize Chrymes, his heirs and assigns, twice in the year to be holden within his or their manor of Buckland Monachorum. By indenture, bearing date the 5th of 1840. DOE d. DUNNING V. CRANSTOUN. Exch. of Pleas, December, 1659, the said Willmotte Dunning assigned the said term of 1000 years to her son Richard Dunning. The said Richard Dunning, by his will, dated the 12th of November, 1692, devised all his lands in Meavy to his son John and his heirs lawfully begotten, and if he should die without any issue lawfully begotten, then to his daughters for life, and after their decease to his brother John Dunning and his heirs male lawfully begotten, and for want of such issue to his right heirs for ever; and the said testator gave to his son John, after the decease of his mother, all the right and term of years which he had in the said lands included in the consent rule, and appointed Mary (his wife) and John (his son) executrix and executor of his will. The testator died the 17th of November, 1692, and his will was proved by the executor and execu trix. The said John Dunning, the son, by indenture of the 5th of October, 1695, made in contemplation of his marriage with Mary Prowse, settled a part of the said leaseholds, describing them properly as such, in default of his having sons, on the daughters of the marriage. The said leaseholds afterwards passed from executor to executor, or were otherwise transferred as chattel interests, and ultimately vested in the said Richard Barré Baron Ashburton as aforesaid. The said Richard Barré Baron Ashburton was descended from the said John Dunning, son of the said Richard Dunning, and his collateral heir male herein mentioned was descended from the beforementioned John Dunning, the brother of the same lastmentioned Richard Dunning. The said Richard Barré Baron Ashburton had not, at the time of making his will, or at the time of his death, any other lands, either freehold or leasehold, in the parishes of Walkhampton and Buckland Monachorum, or either of them, than those included in the consent rule in the ejectment. The only lands which his lordship held at 1840. DOE d. DUNNING V. CRANSTOUN. the time of making his will, and at his death, in the parish Exch. of Pleas, of Meavy, were the freehold lands for which the defendant did not defend as aforesaid. His lordship was also seised, at the time of making his will, and at his death, of divers freehold lands, manors, and estates, besides the said freehold in Meavy, situated in the county of Devon, and which he devised to his wife as aforesaid. His lordship also held, at the time of making his will, and at his death, certain leasehold lands, situate in the county of Devon, which had been purchased by his father, for the residue of a term of ninety-nine years, determinable in November 1845, and which are now in the possession of Miss Margaret Baring, as surviving legatee under his lordship's will. The steward of the late Lord Ashburton proved at the trial, that he was steward from 1808 to the death of his lordship, and as such steward had the custody and entire control of the title-deeds in Walkhampton and Buckland Monachorum; that he prepared leases of those lands, which were executed by Lord Ashburton, reserving rent to his lordship and his heirs, and that he the steward did not know the state of the title to such lands, until the year 1824. This evidence of the steward was objected to by the counsel for the defendant; and if the Court, upon the argument, shall be of opinion that it is not evidence upon the construction of the will of Lord Ashburton, it is to be considered as struck out of the case. After the death of the said Richard Barré Baron Ashburton, and in or about the month of May, 1823, the said will was proved in the Prerogative Court of Canterbury, by the said Anne Selby Lady Ashburton. John Dunning, late of Gerard Street, in the city of Westminster, wine-merchant, duly made out his claim, shewing that he was the nearest collateral heir male of the said Richard Barré Baron Ashburton. Immediately after the death of the said Richard Barré |