Administrative and legal collection: Smith College

As to the forme of the Donation it may be Objected,

1. That it ought to be before Wittnesses, five at least; since this donation being of very considerable value, no formalities that the Law presentes, or that haue been used in such Cases ought to bee omitted; And since in seuerall Countries, such Contracts of donation inter vivos, haue the solemnitye not onely of being insinuated before a magistrate; but also, of being attested by a Competent Number of Wittnesses

2. That it ought to Express that the Donatrix, tooke an Oath to stand to and performe the Contents of it, Since it hath been so usually practiz'd; and especially in the Case of woemen making Donations inter vivos; some regard being (not improbably) had to the frailty & inconstancy of their sex, who, without such a Tye of an Oath & Conscience, might, through the threats or perswasions of one relation, be easily induced to recall or alter what they had done in favour of another. In the present Case, it might much availe the Donatary; especially, if it should fall out, that the Donatrix should be marryed, and haue Children, and be importuned by her husband to alter this Donation

3. That it wants a Clause, declaring, that the donatrix shall not be able hereafter to Revoke or Annulle it for any Cause or upon any pretext whatsoever;

For as such a Clause is usuall in Contracts of Donations inter vivos; so the Civil Lawe mentions seuerall species of ingratitude which may reasonably and justly move a parent to revoke the Donation he had made in favour of his child, and sometimes the behaviour of a father or mother may prove to be such, as are designd to provoke the child to some Irregularity, that they might seem the more plausibly to Excuse such Revocation. In the present case, 'tis not impossible, but that the Donatary may give Offences to the Donatrix, as well as to her husband, in case she should marry & haue Children; and no doubt, but euery litle disgust would be improved to the uttmost disadvantage of the Donatary.

4. That there being diverse Seigneuries disposed of in the donation, it may haue a Clause declaring, that the Licence, Consent & Concurrence of the King and Soveraigne of the Country, was obtained

For as Mobilia concernunt Personam, soe immobilia Territorium; And the particular Customes of some Provinces & Territories in france do not onely over=rule the Law, which otherwise obtaines over that Kingdome, but also often derogate from, & sometimes Contradict the Civil /Imperiall

Imperiall Law, and any Contract or donation made pursuant to it; And these Seigneuries in Britagne being purchased but in retraict Lignager; the purchaser must expect to Combat with whole Familyes, whenever they can sett up their Title; Especially if any particular Custome of that Province should favour them, & help to dissolve or elude this Donation; in favour whereof, that King might, in such a Clause, dispense with such Customes if any there bee.

This Donation had needs be confirmed by the last Will of the Donatrix, which may prevent those future disputes which would inevitably follow in case she dyed intestate, or that any endevours should be used to Annull this Donation

'Tis true the Droit d'Aubein can neuer be Wrested so Farre, as to bee made use of in this Case, where the Donatrix is a Naturall Subject of france (tho' otherwise it hath Overthrown the most solemne Contracts & Treaties too,) Yet, there being a Clause in the Donation /whereby

whereby the Donatrix giues - tous et chacuns les Biens, Meubles et Effets Mobiliers droitz et Actions qu'Elle a et aura au jour de sa mort, Et tous immeubles qu'Elle pourra acquerir And also the Civil Lawyers, Especially the French, being much divided upon this point, Videlicet Whether Bona futura as well as præsentia can bee disposed of by a donation inter vivos; It must follow that whatever aquisitions reall or personall the Donatrix shall happen to make between the time of passing this Donation & the time of her death, will be contested and disputed to the Donatary, unlesse it be prevented by her Will. Besides if Mons^r. Talon, the Advocat Generall, in a playdoye of his in 1673., hath these Words - " - Demissions factes par les Parens "en faveur des Enfans, quoyque Conceües "entre-vifs, sont revocables selon "notre Usage - And so goes on to give seuerall Instances, of /the

the Coutumes of particular Places whereby such Revocations have been obtained.

6, In the forementioned Clause, which disposeth of her Meubles, it could be no prejudice to haue these words added - wheresoever the Donatrix shall happen to be Domiciliated at the time of her Death -

Since in france it is a received Rule, Que les meubles suivent la personne; That the Successor into the possession of Personnall Estates must be regulated according to the Law and Custome of the place, where a Party dying hath his last Domicile; And in case the Donatrix should marry in france and then Live & dye within the Provosté of Paris & haue all her personall Estate with her in the house at the time of her death, The husband would possesse himselfe of the same to the prejudice of the Donatary.

/7.^ly

7.^ly The Letters of Creation granted in France to the Donatrix, and of Naturalization granted to the Donatary may be inspected, least there should be any Clauses therein or conditions therein that may prove prejudiciall and derogatory to the present Donation

Which is with all Obedience submitted to your Lordships great Wisdome.

MiscMS586

This Indenture tripartite made the Twelveth day of December in the Third yeare of the raigne of our sovraigne Lord Charles by the grace of god king of England Scotland France and Ireland Defender of the faith that Betweene Sir Kenelme Digby of Gothurst in the County of Buck knight of the first parte, Phillipp Digby of Colshill in the County of Warwicke esquire, John Freake of Cerney Abbey in the County of Dorsett esquire, and Mathewe Cradocke of Careswall in the County of Stafford esquire of the seconde parte, And Edward Reade of Guberhill in the County of Gloucester esquire of the thirde parte whereas the said Phillipp Digby John Freake and Mathewe Cradocke [at the request] of the said Sir Kenelme Digby and as his suretyes and for [this] only debte stande joyntly and severally bounde together with the said Sir Kenelme to Thomas Paradyne Cittizen and Haberdasher of London in a bond of one thousand pounds bearing date the first day of this instant moneth of December for paym^t of Five hundred and twenty pounds on the sixth day of June next ensueinge the date of the said Obligacion, As in and by the said obligacion more at lardge it doth and may appeare And Whereas the said Mathewe Cradocke hath lent and delyvered unto the said Sir Kenelme Digby the further some of Five hundred pounds more for repaym^t: whereof w^th interest they the said Sir Kenelme Digby and Edward Reade as his surety stand joyntly and severally bounde to the said Mathewe Cradocke in a bond of one thousand pounds bearing date the Eighth day of this instant moneth of December condicioners for paym^t: of Five hundred and twenty pounds att or in the Common Dyninge Hall of the Inner Temple neere Fleete streete London in or upon the twelveth day of June next ensueinge the date of the said last mentioned Obligacion As by the said last mencioned obligacion more at lardge it doth and may appeare And whereas the said Sir Kenelme Digby by his Indenture bearing the date of these presents Hath demised grannted bargayned and soulde to them the said Phillipp Digby John Freake and Mathewe Cradocke their executors administrators and assignes All and singuler those severall Closes and pastures w^th the appertenances in Stoakedry Overhaliacke and Netherhaliacke in the County of Leicester called or knowne by the severall names of Overhaliacke Netherhaliacke and [?es's] Close, and diverse other Messuages Cottages Lands Tenem^ts: and hereditam^ts: in the said Indenture expressed To have and to houlde for and dureing the Terme of one Thousand yeares fully to be compleate and ended As by the said Indenture more at lardge may appeare Now this Indenture witnesseth and it is hereby signified and declared by the mutuall acknowledgem^t: and consent of all the said parties to these presents That the said [recited] Indenture was made first for the saveinge harmless of them the said Phillipp Digby John Freake and Mathewe Cradocke their heires executors and administrators from for and concerninge the said bond entred into to the said Thomas Paradyne And next for the securinge of the said other debte to the said Mathewe Cradocke and for the saveing harmless of him the said Edwarde Reade his heires executors and administrators from for and concerninge the same. And to this intent and purpose and upon this trust That if the said Sir Kenelme Digby his heires executors and administrators shall pay or cause to be paid the said severall somes of money due and payable by the said severall bonds accordinge to the tenor and effect of the severall Condicions of them. That then the said Phillipp Digby John Freake and Mathewe Cradocke are to convey and signe the said Lands and all their estate therein backe to him the said Sir Kenelme his heires and assignes or such as he or they shall appointe free from [?] encumbrances done by them But in Case the said Sir Kenelme his heires and assignes or such defaulte of paym^t: of the said severall [somes] or eyther of them whereby the said bonds or eyther of them shal become forfeite Then at any time after such default made the said Phillipp Digby, John Freake & Mathewe Cradocke or the survivors or survivor of them his executors and administrators shall and may eyther mortgage the said Lands for soe much money as shalbe sufficient to procure a discharge of the said severall bonds or such of them whereof default of paym^t: shalbe soe made and all interest moneyes costs Losses damages and hinderances to be paid sustayned or occasioned by any such defaulte or to sell it outright for that purpose at their discretions, And to permitt and suffer the benefitt of redeeminge the same (in Case it be mortgaged) to accrewe to the said Sir Kenelme Digby and his heires or such as he the said Sir Kenelme shall appointe paying the money for redemption thereof And in Case of Sale outright the overplus of the price over and above what shalbe imployed for discharge of the said severall bonds and all interest money costs of [suite] Losses damages and hinderances whatsoever to be paid sustayned or occasioned thereby (if any such overplus shalbe) to be to the benefitt of the said Sir Kenelme Digby his heires executors or administrators or such as he shall lymitt or appointe provided neverthelesse and it is the true intent and meaninge of all the said parties to these presents That they the said Phillipp Digby, John Freake & Mathewe Cradocke shall have the preferrm^t: to be first satisfied of for and concerninge the said bond soe entred into by them to the said Thomas Paradyne And then in the second place the said Edward Reade and Mathewe Cradocke for and concerning the said other debte for w^ch the said Edward Reade stands bound to the said Mathewe Cradocke as aforesaid And lastly it is agreed by and betweene the said Phillipp Digby John Freake Mathewe Cradocke and Edward Reade and eyther of them for himselfe his heires executors and administrators and for soe much as concerneth him and themselves doth [cov]enante to and w^th the others to joyne together in all iust and lawfull within and concerning the [premisses] for the satisfyinge of the said debts and freeinge of themselves their and eyther of their heires executors and administrators from their said ingagem^ts: and all Losses and damages to be occasioned thereby accordinge to the true intent and meaninge of these presents And that in Case any of them the said Phillipp Digby, John Freake & Mathewe Cradocke shall dye before the said ingagem^ts: be discharged noe benefit of survivorshipp shalbe taken to the preiudice of any of the rest of the said parties to these presents or of his or their heires executors or administrators, But that the survivors or survivor of them and his executors and administrators shall deale as faithfully and effectually for the benefitt of the parties or partie soe deceaseinge his heires executors or administrators and alsoe of the said Edward Reade his heires executors or administrators in and concerninge the premisses as they by the intent and true meaninge of these presents should or ought to have done one for the other if they had beene still all livinge in witness whereof the parties first above named have to these present Indentures interchanngably sett to their hands and seales the day and yeare first above written.

Kenelme Digby Phillyppe Digbye Matthew Cradock

Sealed and delyvered by the within named Mathewe Cradocke in the presence of

John: savage:

Thomas Odiarne

Olyver [Slan]

Sealed and delyvered by the within named Sir Kenelme Digby and Phillipp Digby in the presence of

Thomas Odiarne

Hollyoaks[ ? Leiceshire ? ? ] Lease of 1000 years [given by Ken. Digby] to Phylipp Digby etc. Declaration of[ ?] [consideracion]