The AWARD which his Majesty made between the Earl of Ormond and the Lady Dingwell, by Indenture Tripartite of Award. [In Carew's hand.] MS 613, p. 31 3 October 1618
MS 613, p. 31
Calendar of the Carew Manuscripts preserved in the Archiepiscopal Library at Lambeth, ed. J. S. Brewer & W. Bullen (6 vols., 1867-73), vol. V, document 199.
Whereas divers controversies have been moved between Sir Walter Butler, Kt., Earl of Ormond and Ossory on the one part, and Sir Richard Preston, Kt., Lord Dingwall, and the Lady Elizabeth his wife, sole daughter and heir of Thomas late Earl of Ormond, touching the title and use of the manors, &c. which were of the late Earl Thomas in Ireland, whereunto the said Lord Dingwell in right of the said lady, and the said lady in her own right, pretends title by inheritance from the said Earl Thomas, and the now Earl pretends title to the same, as heir male by entails formerly made thereof; and concerning other lands which were Theobald Butler's, late Lord Viscount Butler of Tulleophelin, late husband of the said Lady Elizabeth, in use or possession; and concerning other lands enjoyed by Lo. Dingwell in right of his lady, and by her in her own right, by estate derived from the late Earl; and concerning other lands which the now Earl has in possession by pretence of conveyances from the late Earl Thomas; and concerning certain debts of the said Lord Viscount which the now Earl has undertaken or stands engaged to pay by reason of certain articles of agreement made between the late Earl, the now Earl, and the Lady Elizabeth in her widowhood; and concerning the evidences, charters, and writings that concern the said manors, lands, &c., or the use of them or any of them. We, of our disposition to plant and settle peace and amity between the parties, the one being heir general and the other heir male of an ancient and noble family in Ireland, have at their suit, notwithstanding our other weighty affairs, been contented to take this burthen upon us, to mediate a quiet arbitration of the controversies. We, therefore, out of our desire to have a firm peace fixed between parties so near in blood, and to prevent the wasting and decaying of the large possessions of the late Earl, which would ensue by multiplicity of suits, and considering it to be an act of piety to appease these controversies, have manifested our intention to proceed by all the ways and degrees we could, to have the true merits of the cause on both parts, as well for matter of fact as for matter of law to be discerned; to which end we commanded our learned counsel, by exact examination of all deeds, wills, and other evidences concerning the estate and possessions of the late Earl on both sides to be produced, to instruct themselves and inform us truly how, upon what considerations, and when the same or any of them were made and perfected, that thereby we might know whether the same depended upon clear or doubtful points in law. They having waited upon us, and let us to wit, by writing under their hands, that there were difficulties in law arising upon the conveyances of the late Earl, which being by him multiplied in his later time, some of the assurances were divers and various in themselves, and thereby left an uncertainty of his intent how much of his inheritance and of what estate he meant to the said Lady Elizabeth or to the said Walter now Earl:--We, therefore, for better preparing our judgment in matter of law, have taken the advice of three of our principal judges, whom we commanded to hear both parties and their counsel at as great length as if the same had been publicly and judicially heard at the bar. And having found by their report the main questions so disputable, as some of them held that Lady Dingwall's right to five of the manors contained within the fines and recoveries levied and suffered in the late Earl's time, viz., the manors of Carick, Thurles, Kelkenny, Callin, and Grenaughe to be clear in law, and others of them doubted of the clearness of that question in their private judgment; but yet they all agreed in one, that the question was so perplexed in law, that none of them could tell what the event of the same would have been if it had been proposed to all the judges of England;--therefore they have all in one voice declared to us, that it was proper for us to give a decree therein by way of equity as if we were sitting in our person in our Court of Chancery.
First, having perused letters from divers of the Lords of the Council by the command of our late sister Q. Eliz., dated 1602, to the late Earl Thomas, signifying that she in respect of her favour then lately done to the Earl and his house, and out of the care she had to see the Lady Elizabeth his daughter competently by him provided for, lest otherwise she might be driven into some indigent fortune, expected that he should then present assure to her after his decease so much of his fee simple lands as should amount to 800l, per ann. in good rents; and thereupon in performance of the same in part before the marriage of the Lady Elizabeth with the late Viscount Butler her first husband did in his lifetime convey and settle upon her a good part of that value amounting to 400l, per ann. or thereabout, whereof the Lo. Dingwall and the Lady Elizabeth have been in quiet possession both before and since the death of the Earl;--We holding it to concern us much in honour to see the Earl's intention for the advancement of the Lady Elizabeth fully performed, and the estate of inheritance intended to her by her father to be made up full to the value of 800l. per ann., think fit it should be done by the now Earl of Ormond, and that he settle to the Lady Elizabeth and the heirs of her body the castles, manors, &c. she already has assured her by her father, and supply and make up to her and her heirs an estate in other lands which; together with that already in her possession, may amount to 800l, per ann. as it was at the time of the letter written to the Earl.
We do therefore order, decree, and award that the Lady Elizabeth and the heirs of her body and her feoffees in trust for her or to her use shall and may from henceforth lawfully and quietly enjoy against the now Earl and his heirs and every other person in trust for him or to his use the manors, &c. hereafter expressed, now in the possession of Lord and Lady Dingwall. (Here follows a list of the said manors.) And, further, for the making up of the value of 800l. so intended by the late Earl, we do hereby award and decree that the now Earl and his heirs, &c. shall within that space by good and sufficient conveyance at the like costs settle, assure, and appoint to the Lady Elizabeth, &c. the said several manors before mentioned, together with all deeds, &c. concerning the lands to her awarded. And as the now Earl, by articles of agreement dated 4 Jan. 1613, and by an obligation under his hand and seal of the sum of 6,000l, dated 18 Jan. following, stands bound to the Lady Elizabeth for payment of all such debts as should appear by good proof or specialty to be due to the late Viscount Butler, her husband, at the time of his death, we, holding it fit to require of the now Earl the payment of the same debts, do therefore order and award that the now Earl, &c. shall, within the space of three years next ensuing, pay all such debts of the late Viscount, and within the space of six months next ensuing satisfy all the sureties of the late Viscount such principal and interest as they have paid, and indemnify such sureties against the same.
And because it may happen that divers of the charters, deeds, &c., which are the strength of the title of the lands in them contained, may concern as well the lands hereby awarded to the said Earl as the lands awarded to the Lady Dingwall, we do therefore decree and award both parties shall, within two years, produce and deliver into our Court of Chancery of Ireland all such as do promiscuously concern the lands hereby severally awarded, which so delivered we hereby order and decree shall there remain for ever for the common and indifferent security of both parties to make use of, which we will shall be done upon motion to be made to our said court, and upon caution to be first given respectively for the safe re-delivering of the same into that court again, nevertheless giving them and their heirs as aforesaid free liberty, power, and authority. And because we have given two years for the perfecting of the several assurances, unless the same be hastened by the several requests of the parties, we do hereby award and decree that the parties respectively shall and may forthwith enter into all and every the lands severally to them awarded, and take possession and claim and challenge the trust or use thereof, and then quietly to hold and enjoy together with the rents and profits thereof as is hereby intended and declared without interruption each of other. And for further settling the premises, we do hereby declare our intent and pleasure to be that at our next Parliament to be holden in Ireland, all and the said manors and lands, &c. be enacted and established by our Parliament to be and remain for ever as the same are herein by our award appointed. And we hereby declare that we shall give our royal assent to such Act if any such shall be offered for our assent. And we further order and award that the said Earl Walter and the Lady Elizabeth and their heirs respectively shall do their best endeavours to have this our award established, ratified, and confirmed at the next Parliament at the equal and indifferent charges of both parties, and that this our award and decree shall be entered and set down within our realm of Ireland as an Act of State before our Deputy and Council there, thereby requiring as well them as all our judges, justices, officers, &c. there for the time being that they be aiding and assisting to see this award and decree in all points to be executed and fulfilled according to our intention herein expressed. In witness whereof we have caused our letters to be made patents. Witness ourself at Westminster. Oct. 3, 1618.
Signed: Younge and Pye, ex per H. Yelverton.