person did continue in the Seigniory for fear if he should dye quickly they should be compelled to pay a new Fine But nothing in the World can excuse Marryot from being guilty of a most wilful and palpable Breach of Trust if Charles have any Right to this Term so that the whole contention in the Case is to make the Estate limited to Charles void void in the Original Creation if not so void by the common Recovery suffered by the now Duke and the Assignment of Marryot If the Estate be Originally void which is limited to Charles there is no harm done but if it only be avoided by the Assignment of Marryot with the concurrence of the Duke of Norfolk he having notice of the Trusts then most certainly they must make it good to Charles in Equity for a palpable Breach of Trust of which they had notice So that the question is reduced to this main single point Whether all this care that was taken to settle this Estate and Family be void and insignificant and all this provision made for Charles and the Younger Children to have no Effect I am in a very great strait in this Case I am assisted by as good advice as I know how to repose my self upon and I have the fairest opportunity if I concur with them and so should mistake to excuse my self that I did errare cum patribus but I dare not at any time deliver any Opinion in this place without I concur with my self and my Conscience too I desire to be heard in this Case with great benignity and with great excuse for what I say for I take this question to be of so universal a Concernment to all Mens Rites and Properties in point of disposing of their Estates as to most conveyances made and settled in the late times and yet on foot that being afraid I might shake more settlements than I am willing to do I am not disposed to keep so closely and strictly to the Rules of Law as the Judges of the Common-Law do as not to look to the Reasons and Consequences that may follow upon the determination of this Case I cannot say in this Case that this Limitation is void and because this is a point that in Courts of Equity which are not favoured by the Judgments of the Courts of Law is seldom debated with any great Industry at the Bar but where they are possessed once of the Cause they press for a Decree according to the usual and known Rules of Law and think we are not to examine things And because it is probable this Cause be it adjudged one way or other may come into the Parliament I will take a little pains to open the Case the Consequences that depend upon it and the Reasons that lye upon me as thus perswaded to suspend my Opinion Whether this Limitation to Charles be void or no is the Question Now first these things are plain and clear and by taking notice of what is plain and clear we shall come to see what is doubtful 1. That the Term in Question tho' it were attendant upon the Inheritance at first yet upon the hapning of the Contingency it is become a Term in gross to Charles 2. That the Trust of a Term in gross can be limited no otherwise in Equity than the Estate of a Term in gross can be limited in Law for I am not setting up a Rule of Property in Chancery other than that which is the Rule of Property at Law. 3. It is clear That the legal Estate of a Term for Years whether it be a long or a short Term cannot be limited to any Man in Tail with the remainder over to another after his death without Issue That is flat and plain for that is a direct perpetuity 4. If a Term be limited to a Man and his Issue and if that Issue dye without Issue the remainder over the Issue of that Issue takes no Estate and yet because the remainder over cannot take place till the Issue of that Issue fail that remainder is void too which was Reeves Case and the reason is because that looks towards a perpetuity 5. If a Term be limited to a Man for life and after to his first second third c. and other Sons in Tail successively and for default of such Issue the remainder over tho' the contingency never happen yet that Remainder is void tho' there were never a Son then born to him for that looks like a perpetuity and this was Sir William Backhurst his Case in the 16. of Modern Reports 115. this King. 6. Yet one step further than this and that is Burgis's Case A Term is limited to one for life with contingent Remainders Modern Reports 115. to his Sons in Tail with remainder over to his Daughter tho' he had no Son yet because it was foreign and distant to expect a Remainder after the Death of a Son to be born without Issue that having a prospect of a perpetuity also was adjudged to be void These things having been settled and by these Rules has this Court always governed it self But one step more there is in this Case 7. If a Term be devised or the Trust of a Term limited to one for Life with twenty Remainders for Life successively and all the persons in esse and alive at the time of the Limitation of their Estates these tho' they look like a possibility upon a possibility are all good because they produce no inconvenience they were out in a little time with an easie interpretation and so was Alford's Case I will yet go farther 8. In the Case cited by Mr. Holt Cotton and Heath's Case a Roll. abr tit devise 612. Term is devised to one for 18. Years after to C. his eldest Son for Life and then to the eldest Issue Male of C. for Life tho' C. had not any Issue Male at the time of the Devise or death of the Devisor but before the death of C. it was resolved by Mr. Justice Jones Mr. Justice Crook and Mr. Justice Berkley to whom it was referred by the Lord Keeper Coventry that it only being a contingency upon a Life that would be speedily worn out it was very good for that there may be a possibility upon a possibility and that there may be a contingency upon a contingency is neither unnatural nor absurd in it self but the contrary Rule given as a Reason by my Lord Popham in the Rector of Chedington's Case looks like a Reason Co. 1. 156. of Art but in truth has no kind of Reason in it and I have known that Rule often denied in Westminster-Hall In truth every Executory Devise is so and you will find that Rule not to be allowed in Blanford and Blanford's Case 13. Jac. 1. part of my Lord Rolls 318. where he says If that Rule take place it will shake several common Assurances And he cites Paramour's and Yardley's Case in the Commentaries where it was
Issue the Daughters his Executrixes against whom an Action of Debt is brought upon a Bond they plead no Assets and upon a special Verdict the Question being whether this were Assets in their hands it was adjudged it was In the report of that Case there are many expressions of the Courts unwillingness to extend these Devises and Dispositions of Terms further than the Judges had gone already The authority of this Case doth much strengthen the authority of Baily's Case because it doth thwart and oppose the Judgement in Rhetorick and Chappell's Case There was also started at the Bar in Pell and Browns Case that a Fee upon a Fee arising upon such a proximate Contingency as might happen in so short a time as a Life was a good Limitation It is very true that Case is so adjudged but I think there might be such reason of difference urged between the disposition of a Fee-Simple and of a Term for a Term may be qualified as to a man and his Heirs until a marriage take effect but the qualifying of a disposition of a Term cannot be because when once a Term is given the qualification comes too late I do think that there have been Cases in this Court where a Term has been limited to one and the Heirs Males of his body upon a Contingency to happen first with Limitations over if that Contingency do not happen that has been a good Limitation As thus if it be limited to the Wife for life and then to the eldest Son if he overlive his Mother and the Heirs Males of his body the Remainder over to a younger Son there if the eldest Son die in the life of the Mother the Limitation to the second Son may be good But if there be an instant Estate-tail created upon a Term with Remainders over though there be a Contingency as to the expectations of him in the Remainder yet there is such a total disposition of the Term as after which no Limitations of a Term can be For that Objection out of Pell and Brown's Case there is no such sure Foundation to build upon in the point of a Term because that Case it self has been controverted since that Judgement given in a Case between Jay and Jay in stiles Reports 258 and 274 Trinit 1651 fol. 258. 'T is thus A man seized in Fee devised it to one and his Heirs and if he die during the life of his Mother the Remainder to another and his Heirs There is no Opinion given but Rolls Chief Justice said a Limitation of an Inheritance after an absolute Fee-simple is not a good Limitation because this would be to make a Perpetuity which the Law will not admit but if it be upon a contingent Fee-simple it is otherwise but fol. 274 where it is spoken to again by Latch he argued that it was not a good Limitation and though he doth cite and confess Pell and Brown's Case to be adjudged quite contrary to what he argued yet he tells you that the Judges did find such Inconveniences arising upon it that the Court was divided upon a like Case and says further that within nine years after that Judgement 21 Jac. it was made a flat Query in the Serjeants Case and adds moreover that it hath been ever since disputable and cites a Case and gives you a Roll but not the Parties names Mich. 37 and 38 Eliz. C. B. Rol. 1149 wherein says the Book after solemn Arguments both at Bar and Bench it was adjudged quite contrary to Pell and Brown's Case but admit that Case to be good Law where will you stop if you admit the limitation of a Term after an Estate-tail where shall it end for if after one it may as well be after two and if after two then as well after twenty for it may be said if he die within 20 years without Issue and so if within 100 and there will be no end and so a Perpetuity will follow It was said at the Bar it will be hard to frustrate the intention of the Parties To that I answer Intention of Parties not according to Law are not to be regarded It was the Intention in Child and Baily's Case that the younger Son should have it and so in Burgesses Case it was the Intention the Daughter should have it and so in Gibsons and Sommers's Case it was intended for the Daughters yet all these Intentions were rejected and therefore as to that it is not at all to weigh any thing in the Case It has also been objected but then here is a contingency that has actually hapned upon Thomas's death without Issue and so the Honour is come to Henry I say the hapning of the Contingency is no ground to judge The Limitation good upon it was not good if the other Limitation had stood out and that I conceive is our Case So then for that I think these expositions have gone as far already as they can for my part I cannot extend it any further and therefore I conceive in this Case the Plaintiff has no right to this Term but the Decree ought to be made for the Defendants The Argument of the Lord Chief Justice North I Shall not trouble your Lordship to repeat the Case again for it has been truly opened by my Lord Chief Baron nor shall I trouble you with any long Argument because I think there is but one point in the case and that a short one The onely point is this Whether this contingent Trust of a Term limited to Charles upon the dying of Thomas without Issue Male whereby the Honour did descend to Henry be good in point of Creation and Limitation for the other two points will not trouble the Case For as to that point of the Recovery in case this being not a good Limitation in point of Creation it will make nothing in the Case for it is gone without the Recovery In case it be good in point of Creation the Recovery will do nothing for that supposeth it to go along with the Inheritance And if this take effect then it will suffer no prejudice by the Recovery Then for the assignment of Marriot to the Duke that signifieth nothing in the Case it doth indeed shew that if your Lordship shall decree this Cause for the Plaintiff then he hath committed a breach of Trust but if for the Defendant then it is of no weight at all If the Law be for the Plaintiff then he must answer for this breach of Trust and so must the Duke for it is a surrender to a person that had notice of the Trust So that the Question is barely upon that single first Point whether it be a good Limitation upon the Contingency to Charles this which they call a springing Trust My Lord I take the Rules of this Court in cases of Trusts of Terms to be the same with Rules of Law in Devises of Terms For I conceive the Rules of Law to prevent Perpetuities are the policy of
the Dukes behalf we now desire is that your Lordship will be pleased to take some further time to consider of it and deliver your Judgment the next Term. Mr. Serj. M. My Lord I did not expect I must confess an Argument at this rate and at this time but your Lordship in great tenderness and favour hath given them leave to do it but after all under favour what they say is a great mistake of the Case If they had observed what was said and truly applied it they would have answered themselves What interpretation in such a Case shall be made or not be made is meerly matter of Equity which upon the circumstances of every Case is governable by the Circumstances I would not go after their Example to argue to support as they have done to overturn the Opinion of the Court that has been delivered But I would offer this to your Lordship there is a great mistake in calling this a Remainder it is no such thing as a Remainder It is indeed a springing Trust upon a Contingency But pray my Lord consider how it stands here in Equity before your Lordship Here is a noble and great Family the Heir of it under the Visitation of the Hand of God which no one could remove but God alone here are a great and numerous Issue to provide for that provision which is made according to the Rules of Nature and Justice and it being necessary to be done no Man could contrive it better than this settlement My Lord they frighten us with the word Perpetuity It is true a Perpetuity cannot be maintained that is an Inheritance not to be aliened or barred or that can never end But here is but the name of a Perpetuity and certainly that must be a strange and monstrous Perpetuity that must determine within the short space of a Life A Perpetuity is an Estate that can never be barred And Littleton hath a Rule that there is no Estate but can be barred if all the Persons concerned in it joyn But it is under favour a contradiction and a great one to call this a Perpetuity a monstrous one I say it is where any Man can see the end of it and whereas to the circumstances of the Case the Family could not otherwise be well provided for And whereas Perpetuities are abhorred it is upon the inconvenience which hinders other provisions in case of necessity and it were indeed an inconvenience that every Family should have the misfortunes that were in this and not be able to provide some sort of remedy for them Some cases my Lord have been put by the other side now which under favour are nothing to the purpose and would need no other answer than they give themselves But truly I think it is not fit for the advantage of the publick that after a Case has been so solemnly argued the Counsel should dispute the Opinion of the Court. My Lord I would desire to say a word in answer to some things that have been urged As to the Case that Mr. H ch s put I think it had been good by way of Executory devise To one and his Heirs Males till such an one returns from Rome or the like had been good especially where the determination Depends but upon the expiring of a short Life But all this is but Petitio principii the same thing over and over As for Child and Baylies Case there are several things that differ it from ours There it hath a semblance of our Case of one dying without Issue but it is there upon a Life and not within a Life as ours doth And in our Case my Lord this Limitation to Henry is a Limitation of a Term attendant upon an Inheritance and then it is plainly as if the Limitation of a Freehold Estate were to one and the Heirs of his Body and if such an accident happens the Estate to cease and be to another for a 100 Years And it is in Henry attendant upon the Inheritance it should not if Henry had died gone to his Exeecutor but to his Heir Then as to Charles here is a condition that determines the whole Trust as to Henry and there it begins to be first a Limitation of a Term in gross He that creates a Term attendant upon an Inheritance may sever it if he will and if he may sever it may he not limit it upon a Contingency that upon such a Contingency it shall be severed All conditions are either precedent or subsequent Precedent to create a springing Trust and Subsequent to destroy the former Estate In Wood and Saunders Case John did not take but upon the precedent Condition but Edward took it upon the subsequent Condition In our Case this condition is both as to the destroying of the Trust to Henry it is a subsequent Condition but as to the creating a new Trust to Charles it is a precedent Condition My Lord I must not undertake to argue this Case but only to say a little to what was said on the other side we hope it being upon so short a Contingency which has now hapned the Limitation of this Term to the Plaintiff is good and we pray your Judgment for him THE Lord Chancellor's SECOND ARGUMENT Lord Chancellor I Am not sorry for the Liberty that was taken at the Bar to argue this over again because I desired it should be so for in truth I am not in love with my own Opinion and I have not taken all this time to consider of it but with very great willingness to change it if it were possibe I have as fair and as justifiable an opportunity to follow my own Inclinations if it be lawful for a Judge to say he has any as I could desire for I cannot concur with the three Chief Judges and make a Decree that would be unexceptionable But it is my Decree I must be saved by my own Faith and must not Decree against my own Conscience and Reason It will be good for the satisfaction of the publick in this Case to take notice how far the Court is agreed in this Case and then see where they differ and upon what grounds they differ and whether any thing that hath been said be a ground for the changing this Opinion The Court agreed thus far That in this Case it is all one the Limitation of the Trust of a Term or the Limitation of the Estate of a Term all depends upon one and the same Reason The Court is likewise agreed which I should have said first to dispatch it out of the Case that it may not trouble the Case at all that the Surrender of Marryot to the Duke of Norfolk and the common Recovery suffered by the Duke are of no use at all in this Case For if this Limitation to Charles be good then is that Surrender and the Recovery a breach of Trust and ought to be set aside in Equity so all the Judges that assisted at the hearing of this Cause
agreed If the Limitation be not good then there was no need at all of a Surrender to bar it nor of the common Recovery to extinguish it But then we come to consider the Limitation and there it agreed all along in point of Law That the measures of the Limitations of the Trust of a Term and the measures of the Limitations of the Estate of a Term are all one and uniform here and in other Cases and there is no difference at Chancery or at Common Law between the Rules of the one and the Rules of the other what is good in one Case is good in the other And therefore in this Case the Court is agreed too that the Limitations made in this Settlement to Edward c. are all void for they tend directly and plainly to Perpetuities for they are Limitations of Remainders of a Term in gross after an Estate Tail in that Term which commenceth to be a Term in gross when the Contingency for Charles happens Thus far there is no difference of Opinion but whether the Limitation to Charles if Thomas die without Issue living Henry whereby the Honour of the Earldom of Arundel descends upon Henry I say whether that be void too is the great Question of this Case wherein we differ in our Opinions It is said that is void too and yet sever it from the Authority of Child and Baylie's Case which I will speak to by and by I would be glad to see some tolerable Reason given why it should be so for I agree it is a Question in Law here upon a Trust as it would be elsewhere upon an Estate and so the Questions here are both Questions of Law and Equity It was well said and well allowed by all the Judges when they did allow the Remainders of Terms after Estates Tail in those Terms to be void I shall not devise a Term to a Man in Tail with Remainders over the Judges have admirably well resolved in it and the Law is setled and Matthew Mannings Case did not stretch so far because this would tend to a Perpetuity Now on the other side I would fain know when there is a Case before the Court where the Limitation doth not tend to a Perpetuity nor introduceth any visible Inconvenience what should hinder that from being good For tho' if there be a tendency to a Perpetuity or a visible Inconvenience that shall be void for that reason yet the bare Limitation of the Remainder after an Estate Tail which doth not tend to a Perpetuity that is not void Why because it is not I dare not say so see then the Reasons why it is so The Reasons that I lie under the load of and cannot shake off are these The Law doth in many Cases allow of a future Contingent Estate to be limited where it will not allow a present Remainder to be limited and that Rule well understood goeth through the whole Case How do you make that out Thus If a Man have an Estate limited to him his Heirs and Assigns for ever which is a Fee-simple but if he die without Issue living J. S. or in such a short time then to J. D. tho' it be impossible to limit a Remainder of a Fee upon a Fee yet it is not impossible to limit a Contingent Fee upon a Fee. And they that speak against this Rule do endeavour as much as they can to set aside the Resolution of Pells and Browns Case which under favour was not the first Case that was so Resolved for as I said before when I first delivered my Opinion it was resolved to be a good Limitation 19 Eliz. in the Case of Hinde and Lyon 3 Leonard 64. which by the way is the best Book of Reports of the later ones that hath come out without Authority If that be so then where a present Remainder will not be allowed a Contingent one will. If a Lease for years come to be limited in Tail the Law allows not a present Remainder to be limited thereupon yet it will allow a future Estate arising upon a Contingency only and that to wear out in a short time But what time and where are the bounds of that Contingency You may limit it seems upon a Contingency to happen in a life what if it be limited if such a one die without Issue within 21 Years or 100 Years or while Westminster-hall stands Where will you stop if you do not stop here I will tell you where I will stop I will stop where-ever any visible Inconveniece doth appear for the just bounds of a Fee-simple upon a Fee-simple are not yet determined but the first Inconvenience that ariseth upon it will regulate that First of all then I would fain have any one answer me where there is no Inconvenience in this Settlement no Tendency to a Perpetuity in this Limitation and no Rule of Law broken by the Conveyance what should make this void And no Man can say that it doth break any Rule of Law unless there be a Tendency to a Perpetuity or a palpable Inconvenience Oh yes Terms are meer Chattels and are not in consideration of Law so great as Freeholds or Inheritances These are words and but words there is not any real difference at all but the Reason of Mankind will laugh at it shall not a Man have as much power over his Lease as he has over his Inheritance If he have not he shall be disabled to provide for the Contingencies of his own Family that are within his view prospect because it is but a Lease for years and not an Inheritance or a Freehold There is that absurdity in it which is to me insuperable nor is the Case that was put answered in any degree A Man that hath no Estate but what consists in a Lease for years being to Marry his Son setled this Lease thus In Trust for himself in Tail till the Marriage take effect and if the Marriage take effect while he lives then in Trust for the Married couple is this future Limitation to the married couple good or bad If any Man say it is void he overthrows I know not how many Marriage-settlements If he say it be good why is it not a future Estate in this Case as good as in that when there is no tendency to a Perpetuity no visible Inconvenience All Men are agreed and my Lord Chief Justice told us particularly how that there is a way in which it might be done only they do not like this way and I desire no better argument in the World to maintain my Opinion than that For says my Lord Chief Justice suppose it had not been said thus if Thomas die without Issue living Henry then over to Charles but thus if it happens that Thomas die without Issue in the life of Henry c. then this Term shall cease and there shall a new Term arise and be created to vest in Charles in Tail and that had been wonderful well and my