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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A52524	The arguments of the Right Honourable, the late Lord Chancellor Nottingham upon which he made the decree in the cause between the Honourable Charles Howard esq., plaintiff : Henry, late Duke of Norfolk, Henry Lord Mowbrey his son, Henry Marquess of Dorchester and Richard Marriott, esq.: defendants : wherein the several wayes and methods of limiting the trust of a term for years, are fully debated.	England and Wales. Court of Chancery.; Nottingham, Heneage Finch, Earl of, 1621-1682.; Howard, Charles, d. 1713.; Norfolk, Henry Howard, Duke of, 1628-1684.	1685 (1685)	Wing N1402; ESTC R30748	19,382	38

THE ARGUMENTS Of the Right Honourable the late Lord Chancellor NOTTINGHAM Upon which he made the DECREE IN THE CAUSE BETWEEN THE Honourable Charles Howard Esq Plaintiff Henry late Duke of Norfolk Henry Lord Mowbrey his Son Henry Marquess of Dorchester and Richard Marriott Esq Defendants WHEREIN The several Wayes and Methods of limiting the Trust of a Term for Years are fully debated LONDON Printed for George Tatarshall Esq of Finchamsted in the County of Berks. MDCLXXXV The Arguments of the late Lord Chancellor Nottingham upon which he made the Decree in the Cause between the Honourable Charles Howard Esquire Plaintiff Henry late Duke of Norfolk Henry Lord Mowbrey his Son Henry Marquess of Dorchester and Richard Marriot Esquire Defendants Wherein the several wayes and methods of limiting the Trust of a Term for Years are fully debated The First Argument THis is the Case The Plaintiff by his Bill demands the benefit of a Term for two hundred Years in the Barony of Greystocke upon these settlements Henry Fredericke late Earl of Arundel and Surry Father of the Plaintiff and Defendant had Issue Thomas Henry Charles Edward Francis and Bernard and a Daughter the Lady Katharine Thomas Lord Maltravers his eldest Son was Non compos Mentis and care is taken to settle the Estate and Family as well as the present circumstances will admit And thereupon there are two Indentures drawn and they are both of the same date The one is an Indenture between the Earl of Arundel of the one part and the Duke of Richmond the Marquess of Dorchester Edward Lord Howard of Eastcricke and Sir Thomas Hatton of the other part it bears date the Twenty first day of March 1647. Whereby an Estate is conveyed to them and their Heirs To these uses To the use of the Earl for his life After that to the Countess his Wife for her life with power to make a Lease for 21. Years reserving the antient Rents The remainder for 200. Years to those Trustees and that upon such trusts as by another Indenture intended to bear date the same day the Earl should limit and declare and then the remainder of the Lands are to the use of Henry and the Heirs Males of his Body begotten with like remainders in Tail to Charles Edward and the other Brothers successively Then comes the other Indenture which was to declare the Trust of the Term for 200 Years for which all these preparations are made and that declares that it was intended this Term should attend the inheritance and that the profits of the said Barony c. should be received by the said Henry Howard and the Heirs Males of his Body so long as Thomas and any Issue Male of his Body should live which was consequently only during his own life because he was never likely to marry and if he dye without Issue in the life time of Henry not leaving a Wife privement Enseint of a Son or if after his death the Digniy of Earl of Arundell should descend upon Henry Then Henry or his Issue should have no farther benefit or profit of the Term of 200 Years Who then shall But the benefit shall redound to the younger Brothers in manner following How is that To Charles and the Heirs Males of his Body with the like Remainders in Taile to the rest Thus is the matter setled by these Indentures how this Family was to be provided for and the whole Estate govern'd for the time to come These Indentures are both sealed and delivered in the presence of Sir Orlando Bridgman Mr. Edward Alehorne and Mr. John Alehorn both of them my Lord Keeper Bridgman's Clerks I knew them to be so This Attestation of these Deeds is a Demonstration to me they were drawn by Sir Orlando Bridgman After this the Contingency does happen for Thomas Duke of Norfolk dies without Issue and the Earldome of Arundel as well as the Dukedom of Norfolk descended to Henry now Duke of Norfolk by Thomas his death without Issue presently upon this the Marquess of Dorchester the surviving Trustee of this Estate assigns his Estate to Marryot but he doth it upon the same Trusts that he had it himself Mr Marryot assigns his interest frankly to my Lord Henry the now Duke and so has done what he can to merge and extinguish the Term by the signing it to him who has the Inheritance To excuse the Marquess of Dorchester from cooperating in this matter it is said there was an absolute necessity so to do Because the Tenants in the North would not be brought to renew their Estates while so Aged a 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 concurr 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 setled 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 seldome debated with any great industry at the Barr

the Case For if so be this be a good limitation of the Trust and they who had notice of it will palpably break it they are bound by the Rules of Equity to make it good by making some Reparation Nay which is more if the Heir enter upon the Estate to defeat the Trust that very Estate doth remain in Equity infected with the Trust which was the Case of my Lord of Thomond so also was the Resolution in Jackson and Jackson's Case So that to me the Right appears clear and the Remedy seems not to be difficult Therefore my present thoughts are that the Trust of this Term was well limited to Charles who ought to have the Trust of the whole Term Decreed to him and an account of the mean profits for the time by past and a recompence made to him from the Duke and Maryot for the time to come But I do not pay so little Reverence to the Company I am in as to run down their solemn Arguments and Opinions upon my present Sentiments and therefore I do suspend the Inrolment of any Decree in this Case as yet but I will give my self some time to consider before I take any final Resolution seeing the Lords the Judges do differ from me in their Opinions The End of the First Argument THE SECOND ARGUMENT 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 possible 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 Maryot 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 is 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 Balie'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 pertuity 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 though 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 I. S. or in such a short time then to I. D. though 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

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 adjuged 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 Taile 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 though the contingency never happen yet that Remainder is void though 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 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 to his Sons in Tail with remainder over to his Daughter though 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 have been settled and by these Rules has this Court alwayes 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 though they look like a possibility upon a possibility are all good because they produce no inconvenience they wear 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 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 though 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 of Art but in truth has no kind of Reason in it and I have known that Rule often denyed 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 sayes 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 adjudged a good Devise though it were a possibility upon a possibility These Conclusions which I have thus laid down are but Preliminaries to the main Debate It is now fit we should come to speak to the main Question of the Case as it stands upon its own Reason distinguished from the Reasons of these Preliminarie and so the Case is this The Trust of a Term for Two Hundred Years is limited to Henry in Tail provided if Thomas dye without Issue in the life of Henry so that the Earldome shall descend upon Henry then to go to Charles in Tail and whether this be a good Limitation to Charles in Tail is the Question for most certainly it is a void Limitation to Edward in Tail and a void Limitation to the other Brothers in Tail But whether it be good to Charles is the doubt who is the first taker of this Term in gross for so it is I take it now become and I do under favour differ from my Lord Chief Justice in that point for if Charles dye it will not return to Henry for that is my Lord Cook's error in Leonard Loveis's Case for he sayes That if a Term be devised to one and the Heirs Male of his Body it shall go to him or his Executors no longer than he has Heirs Males of his Body but it was resolved otherwise in Leventhorp's and Ashby's Case 11. Car B. R. Rolls Abridgment Title Devise fol. 611. for these Words are not the Limitation of the time but an absolute disposition of the Term. But now let us I say consider whether this Limitation be good to Charles or no. It hath been said Obj. 1. It is not good by any means for it is a possibility upon a possibility Answ. That is a weak Reason and there is nothing of Argument in it for there never was yet any Devise of a Term with Remainder over but did amount to a possibility upon a possibility and executory Remainders will make it so Obj. 2. Another thing was said it is void because it doth not determine the whole Estate and so they compare it to Sir Anthony Mildmay's Case where it is laid down as a Rule that every Limitation or Condition ought to defeat the intire Estate and not to defeat part and leave part not defeated and it cannot make an Estate to cease as to one person and not as to the other But Answ. I do not think that any Case or Rule was