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death_n	body_n	life_n	live_v	16,011	5	5.7849	4	true

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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

ever worse applyed than that to this for if you do observe this Case here is no Proviso at all annexed to the legal Estate of the Term but to the equitable Estate that is built upon the legal Estate unto the Estate to Henry and the Heirs Males of his Body to attend the Inheritance with a Proviso If Thomas dye without Issue in Henry's life and the Earldom come to Henry then to Charles which doth determine the Estate to Henry and his Issue but the other Estate given to Charles doth arise upon this Proviso which makes it an absurdity to say that the same Proviso upon which the Estate ariseth should determine that Estate too Obj. 3. The great matter objected is It is against all the Rules of Law and tends to a perpetuity Answ. If it tends to a perpetuity there needs no more to be said for the Law has so long laboured against perpetuities that it is an undenyable Reason against any settlement if it can be found to tend to a perpetuity Therefore let us examine whether it do so and let us see what a Perpetuity is and whether any Rule of Law is broken in this Case A perpetuity is the settlement of an Estate or an Interest in Tail with such Remainders Expectant upon it as are in no sort in the power of the Tenant in Tail in possession to dock by any Recovery or Assignment but such Remainders must continue as perpetual cloggs upon the Estate such do fight against God for they pretend to such a stability in human Affairs as the nature of them admits not of and they are against the Reason and the policy of the Law and therefore not to be endured But on the other side future Interests springing Trusts or Trusts Executory Remainders that are to emerge and arise upon Contingencies are quite out of the Rules and Reasons of Perpetuities nay out of the reason upon which the Policy of the Law is founded in those Cases especially if they be not of remote or long consideration but such as by a natural and easy interpretation will speedily wear out and so things come to the right Chanel again Let us examine this Rule with respect to Freehold-Estates and see whether there it will amount to the same Issue There is not in the Law a clearer Rule than this that there can be no Remainders limited after a Fee simple so is the express Book Case 19 Hen. 8. in my Lord Dyer But yet the nature of things and the necessity of commerce between Man and Man have found a way to pass by that Rule and that is thus either by way of Use or by way of Devise Therefore if a Devise be to a Man and his Heirs and if he dye without Issue in the life of B. then to B. and his Heirs this is a Fee simple upon a Fee simple and yet it has been held to be Good My Lord Chief Baron did seem to think that this Resolution did take its Original from Pells and Brown's Case but it did not so the Law was setled before you may find it expresly resolved 19 Eliz. in a Case between Hinde and Lyon 3. Leonard Which of the Books that have lately come out is one of the best and it was there adjudged to be so good a limitation that the Heir who pleaded riens per descent was forced to pay the debt and it had the concurrence of a judgement in 38 Eliz. grounded upon the Reason of Wellock and Hammond's Case cited in Beraston's Case where it is said Crooke Eliz. 204. in a devise it may well be that an Estate in Fee shall cease in one and be transferred to another all this was before Pells and Brown's Case which was in 18. Jac. It is true it was made a Question afterwards in the Serjeants Case but what then We all know that to be no Rule to judge by for what is used to exercise the Wits of the Serjeants is not a governing Opinion to decide the Law It was also adjudged in Hil. 1649. when my Lord Rolls was Chief Justice and again in Mich. 1650. and after that indeed in 1651. it was resolved otherwise in Jay and Jay's Case but it has been often agreed that where it is within the compass of one Life that the Contingency is to happen there is no danger of a perpetuity And I oppose it to that Rule which was taken by one of the Lords the Judges That where no Remainders can be limited no contingent Remainder can be limited which I utterly deny for there can be no Remainder limited after a Fee simple yet there may a contingent Fee simple arise out of the first Fee as hath been shewn Thus it is agreed to be by all sides in the Case of an Inheritance but now say they a Lease for Years which is a Chattel will not bear a contingent Limitation in regard of the poverty and meanness of a Chattel Estate Now as to this point the difference between a Chattel and an Inheritance is a difference only in Words but not in substance nor in Reason or the Nature of the thing for the owner of a Lease has as absolute a power over his Lease as he that hath an Inheritance has over that And therefore where no perpetuity is introduced nor any inconveniency doth appear there no Rule of Law is broken The Reasons that do support the springing Trust of a Term as well as the springing use of an Inheritance are these 1. Because it hath hapned sometimes and doth frequently that men have no Estates at all but what consist in Leases for Years Now it were not only very severe but under favour very absurd to say that he who has no other Estate but what consists in Leases for Years shall be incapable to provide for the Contingencies of his own Family tho' these are directly within his view and immediate prospect And yet if that be the Rule so it must be for I will put the Case A man that hath no other Estate but Leases for Years Chattels real treats for the marriage of his Son and thereupon it comes to this agreement These Leases shall be setled as a Joynture for the Wife and provision for the children sayes he I am content but how shall it be done Why thus You shall assign all these terms to John a Styles in Trust for your self and your Executors if the marriage take no effect But then if it takes effect to your Son while he lives to his Wife after while she lives with Remainders over I would have any one tell me whether this were a void limitation upon a Marriage settlement or if it be what a strange absurdity is it that a man shall settle it if the marriage take no effect and shall not settle it if the marriage happen 2. Suppose the Estate had been limited to Henry Howard and the Heirs Males of his Body till the death of Thomas without Issue then to Charles there

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 onely 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 twenty one years or a hundred 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 inconvenience 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 and 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 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 onely 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 Lord of Arundels intention might have taken effect for the younger Son This is such a subtilty as would pose the Reason of all Mankind For I would have any man living open my understanding so far as to give me a tolerable Reason why there may not be as well a new springing Trust upon the same Term to go to Charles upon that Contingency as a new springing Lease upon the same Trust For the latter doth much more tend to a perpetuity than the former doth I am bold to say it But I expect to hear it said from the Bar and it has been said often the Case of Child and Balie is a great Authority so it is But this I have to say to it first the point resolved in Child and Balie's Case was never so resolved before nor ever was there such a Resolution since Pells and Brownes Case was otherwise resolved and has often been adjudged so since In the next place I will not take much pains to distinguish Child and Balie's Case from this though the word Assigns and the grant of the Remainder by the Mother who was Executrix are things that Rolls lay hold on as Reasons for the Judgment But I know not why I may not with Reverence to the Authority of that Case and the Learning of those that Adjudged it take the same liberty as the Judges in Westminster-Hall sometimes do to deny a Case that stands single and alone of it self And I am of Opinion the Resolution in that Case is not Law though there it came to be resolved upon very strange circumstances to support such a Resolution for the Remainder of a Term of seventy six years is called in question when but fifteen years of it remained and after the possession had shifted hands several times and therefore I do not wonder that the Considerations of Equity swayed that Case But I put it upon this point pray consider there is nothing in Child and Balie's Case that doth tend to a perpetuity nor any thing in the Settlement of the Estate there that could be called an Inconvenience nor any Rule of Law broken by the Conveyance but it is absolutely a Resolution quia volumus For it disagrees with all the other Cases before and since all which have been otherwise resolved but it is a Resolution I say meerly because it is a Resolution And it is expresly contrary to Wood and Saunder's Case which no Art or Reason can distinguish from our Case or that For here was that Case which was clipt and minced at the Bar but never answered Wood and Saunder's Case is this To the Husband for sixty years if he lived so long to the Wife for sixty years if she lived so long then if John be living at the time of the death of the Father and Mother then to John but if he die without Issue living Father or Mother then to Edward Suppose these words living Father or Mother had been out of the Case and it had been to John and if he die without Issue to Edward will any man doubt but then the Remainder over had been void because it is a Limitation after an express Entail How came it then to be adjudged good because it was a Remainder upon a Contingency that was to happen during two lives which was but a short Contingency and the Law might very well expect the hapning of it Now that is this Case nay ours is much stronger for here it is onely during one life there were two The Case of Cotton and Heath in Rolls comes up to this A Term is devised to A. for eighteen years the Remainder to B. for life the Remainder of the first Issue male of B. which is a Contingent Estate after a Contingency and yet adjudged good because the happening of the Contingency was to be expected in so short a time Now that Case was adjudged by my Lord Keeper Coventry Mr.