a Fee upon a Fee is not yet plainly determined but it will be soon found out if men shall set their Wits on work to contrive by Contingencies to do that which the Law has so long laboured against the thing will make it self Evident where it is Inconvenient and God forbid but that Mischief should be obviated and prevented I have done with the legal Reasons of the Case it is fit for us here a little to observe the Equitable Reasons of it and I think this Deed is good both in Law and Equity And the Equity in this Case is much stronger and ought to sway a man very much to incline to the making good this Settlement if he can For 1. It was prudence in the Earl to take care that when the Honour descended upon Henry a little better support should be given to Charles who was the next Man and trode upon the heels of the Inheritance 2. Though it was always uncertain whether Thomas would die without Issue living Henry yet it was morally certain that he would die without Issue and so the Estate and Honour come to the younger Son for it was with a careful circumspection always provided that he should not Marry till he should recover himself into such estate of body and mind as might suit with the honour and dignity of the Family 3. It is a very hard thing for a Son to tell his Father that the provision he has made for his younger Brothers is void in Law but it is much harder for him to tell him so in Chancery And if such a provision be void it had need be void with a vengance it had need be so clearly void that it ought to be a prodigie if it be not submitted to Now where there is no perpetuity introduced no cloud hanging over the Estate but during a Life which is a common possibility where there is no inconvenience in the Earth and where the Authorities of this Court concur to make it good to say all is void and to say it here I declare it I know not how to do it To run so Counter to the Judgment of that great man my Lord Keeper Bridgman who both advised this settlement and when he was upon his Oath in this place decreed it good I confess his Authority is too hard for me to resist though I am assisted by such learned and able Judges and will pay as great a Deference to their Opinions as any man in the World shall If then this shall not be void there is no need for the Merger by the Assignment or the Recovery to be considered in 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 Marryot 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 De Termino Pasch anno 34. Car. II. Ro. In Cancell Sabbati 13 die Maij. Howard Versus Le Duc de Norfolk THis Day was appointed for final Judgment in this cause and it being called Mr. Serjeant M. moved My Lord we depend upon your Lordship in that cause for your Opinion Mr. S. G. My Lord in the Case of Howard against the Duke of Norfolk I do not know whether I may have the Liberty to move this that I am going to offer It stands now in the Paper now for your Lordships Judgment and therefore I speak this that I now offer with great submission if your Lordship will please to hear it If you will please to allow my Lord of Arundel's Counsel the liberty of offering any thing further in the Cause Possibly it will not become them to offer any thing that hath been said but if they may be permitted to argue some new matter if they can find any Therefore we that are for my Lord of Arundel desire the liberty of having some little time till Mr. Keck who is of my Lords Counsel but at present indisposed and has not yet been heard can come which we hope will not be long We hope it will be no prejudice to this Cause which has had so long an agitation to stay a few days longer A Weeks time sure will break no squares Lord Chancellor I did appoint the first Tuesday in the Term to deliver my Opinion in this Case for I desire to rid my hands of it But Mr. Keck who was then at the Bar did pray that he might argue it once more for the Defendant and my Lord Duke of Norfolk having never been heard by Mr. Keck I was willing to hear him For it was a Cause of moment and difference of Opinions and there are so many short-hand Writers that nothing can pass from us here but it is presently made publick and tho' a Man doth not speak in Print yet what he says shall be immediately put in Print therefore because Mr. Keck desired it and to justify my own Opinion tho' I had appointed the first Tuesday in the Term yet I gave till this day It is but reason Mr. Keck should be heard who has not yet argued it and if any Man can convince me I am in an error or make it appear to me that I am mistaken in the Law in the Opinion I have given which as yet I see no cause in the World to change God forbid but I should hear them but on the other side this cause must not everlastingly be put off because my Lord Dukes Counsel are not here Therefore I will give you a Weeks time further but upon this Day sevennight come or not come I will give my Judgment in the Cause Mr. Serj. M. If your Lordship pleases to put it upon the other side unless they shew cause then the Opinion your Lordship has given to stand Lord Chancellor If my Opinion which is under the prejudice of being contrary to that of the three Chief Judges can be refuted I am not ashamed to retract any error I
is the Ground that is drawn up in the Decretal Order of the Cause because this was a Contingent Limitation to John and that never hapning it is all one as if it had never been limited and amounts putting the Contingent Limitation which never hapned out of the Case to no more than a Limitation to the Father and Mother for Life the remainder over which is well enough This is that I have to offer and I humbly submit it to your Lordship Mr. Serj. M. And so we do and pray your Judgment Mr. R. I see they are pressing for your Lordships Judgment and I know not whether it will become me to interpose with any thing Lord Chancellor Say say for this is a Cause that deserves patience Mr. R. No Man my Lord can have any great encouragement to add any thing after all the Arguments that have been made in this Cause or can hope to offer that which will be very material and new but I desire to have leave to say this in short My Lord there be two Deeds by which this settlement is made as a provision for the second Son of this Family and the younger Children and therein it doth perhaps appear that if the Bulk of the Estate and the Honour should come to the second Son then the settlement of this part that is made upon the second Son was intended to come to the now Plaintiff and the younger Children This is the Intention of the two Deeds By the first Deed the Estate of Freehold and Inheritance is limited in Tail. By the second Deed the Trust is declared of the Term for 200 Years that is limited to Henry and so over And therein it differs from the Case of Wood and Saunders For the Trust of the Term doth vest in Henry till the Contingency happen but in Wood and Saunders Case there it is limited to the Father and Mother for 60 Years if they lived so long then to John and his Heirs Males in Case he survive his Father and Mother and the Trust to be assigned to him accordingly and if he die without Issue in the Life of the Father and Mother then to Edward his Brother No Man can say that ever any thing here did vest in John For it was but limited to him after his Father and Mother's life in case he survived them but it never vested in him and so it differs from this Case For here the Trust of the Term did vest in the Duke of Norfolk till the Contingency did happen And as that is the difference between the two Cases and I do apprehend it is a difference with great reason from Wood and Saunders Case so that which I infer from it is this That where the Trust of a Term is limited to a Man and his Issue and his Heirs Males and that vested in him if he die without Issue or which is much a stronger Case tho' the Contingency be restrained within the compass of a life or of a certain time that is to wear out in a reasonable distance yet coming after a Limitation in Tail cannot carry the remainder over For if you once admit it during one life you must admit it during twenty lives for the reason is the same as to twenty as it is to one if they be all in Being and perhaps the reason will be the same as to twenty lives all in Being and for the life of one person more Then if the Trust of a Term where it is once vested in Tail can never be well limited over tho' restrained within the Contingent distance of a reasonable time This Limitation to the Plaintiff can never be good My Lord I crave leave to offer your Lordship one Case or two suppose that a Term for Years or the Limitation of the Trust of a Term for Years for I think there is the same construction made of both be limited to J. S. and the Issue of his Body and if J. S. die without Issue within 100 Years for the purpose or within twenty Years then to go over to J. N. that cannot be apprehended to be good but void for there is no difference between 1000 or 100 or 20 Years yet 20 Years is but a reasonable time and not more in prospect than one or ten lives If a Man limit the Trust of a Term or a Term it self to J. S. and the Issue of his Body and if he die without Issue before 21. then to go over to J. N. This a reasonable distance of time and yet I believe this will not be allowed to be good and well limited over And the reason is where once a Term is limited to a Man and his Issue this in a reasonable construction of Law carries the whole Term for it was a good while before they gained the point of remainders after lives and if after it be said if he die without Issue within a 100 Years or before 21. that restriction will not help it as we think Then where is the reason or sense that it should be otherwise if he die without Issue in the life of another person Truly my Lord it is very hard to find out a true difference between the Cases where the Restriction is for the life of a certain person and where it is upon a certain number of Years My Lord I would put this Case upon Wood and Saunders Case which is the authority that is so much pressed upon us Suppose that Case had been thus to the Father for 60 Years if he so long live to the Mother for 60 Years if she so long live and then instead of that Limitation to John in Case he survived his Father and Mother suppose it had been to the first Son of the Father and Mother and the Heirs of his Body and if such first Son die without Issue in the life-time of his Father and Mother then it should go over to another person Had it then been good surely no. What is the difference Why this it being to John in case he survived his Father and Mother nothing vested But if it had been to the first Son and the Heirs of his Body and they have a Son there it differs for it is actually vested in him And there the Limitation over to a stranger would not be good even admitting the Case of Wood and Saunders to be uncontroulable Another Objection your Lordship made was about the necessary Limitations of the Trusts of Terms by Termers upon Marriage Settlements to a Mans self till the Marriage take effect and then to such and such uses and the Objection is why should it not be as good a Limitation of the Trust of a Term or of a Term it self as well as of an Inheritance That will not reach our Case therefore I need not say any thing to it whether it would be so or no. But suppose this Case there be two Brothers the Eldest hath no Children the younger Brother hath a Son and is a going to Marry
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