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
Lord Chief Baron Montague Charles Howard is Plaintiff and the Duke of Norfolk and others are Defendants The Plaintiff by his Bill seeks to have Execution of a Trust of a term of 200 years of the Barony of Grastock which was made by Henry Frederick Earl of Arundel and upon the Bill Answers Deeds and other Passages in this Cause contained is this Henry Frederick Earl of Arundel by Lease and Release of the 20th and 21th of March 1647. did settle the Barony of Grastock and of Burgh and several other Lands to himself for Life then to the Countess Elizabeth his Wife for life and then there is a term created for 99 years which we need not mention in this Case because it is determined and after the death of the Countess there is a term for years limited to my Lord of Dorchester and other Trustees for 200 years under a Trust to be declared in a Deed of the same date with the Release and the limitation of the Inheritance after this term of 200 years is first to Henry Howard now Duke of Norfolk and the Heirs Males of his Body then to Mr. Charles Howard the now Plaintiff Brother of the said Henry and so to all his Brothers successively intail Male with the last Remainder to the Earl of and his Heirs then by a Deed 21 of March 1647 the Earl declares the Trust of the term of 200 years reciting first the uses of the former Deed and therein says it was intended that the said term should attend the Inheritance and the Profits of the Barony of should be received for 200 years by Henry Howard now Duke of Norfolk and the Heirs Males of his body so long as Lord Thomas eldest son of the said Earl of Arundel or any Issue Male of his body should be living but in case he should die without Issue Male in the life of Henry Howard not leaving his Wife ensient with a Son or in case after the death of Thomas without Issue Male the Honour of the Earldom of Arundel should descend to Henry Howard then he and his Issues to have no benefit of this term of 200 years but it was to descend to the other Brother Charles Howard the now Plaintiff as hereafter is mentioned and then comes Now this Indenture witnesseth and therein the Earl declares that it should be under the Limitations after specified viz. if Thomas Lord Howard had any Issue Male or Heirs Male of his body living Henry Howard then the Trustees should have the commencement of the term in trust for the said Henry Howard and the Heirs Males of his body till such time as the Earldom should come to Henry Howard by the death of Thomas without Heirs Males of his body and after to the other Brothers successively and the Heirs Males of their bodies and then doth divide the other Mannors with cross Remainders to the five Brothers then the Case goes on thus the Earl of Arundel dies in time in 1652 Elizabeth the Countess dies in 1673 then in 1675 my Lord of Dorchester the surviving Trustee assigns the Term to one Marriot he assigns it to the now Duke of Norfolk and the Duke the 24th of Octob. 1675 by Bargain and Sale makes a Tenant to the Precipe and then a Recovery is suffered and the Uses of that Recovery 25th of October are declared to be to the Duke and his Heirs Then Thomas Howard the former Duke died without Issue having never been married and that is in the year 1677 whereby the Honour came to the now Duke and so the Plaintiffs Bill is to have execution of the Trust of the term of the Barony of to the use of himself and the Heirs Males of his body This I conceive was opposed by the Counsel for the Defendant upon these grounds 1. That by the Assignment made by Marriot to my Lord Duke Henry the Term was surrendred and quite gone 2. The second ground was the common Recovery suffered which they say barred the remainders which the other Brothers had and so also would be a bar to the Trust of this term 3. And the other ground was that the Trust of a term to Henry and the Heirs Males of his body until by the death of Thomas without Issue the Earldom should descend upon him and then to Charles is a void Limitation of the Remainder As to the first that by the assignment of Marriot to Henry Howard the whole Term was surrendred and being so surrendred hath no existance at all that I find but was barely mentioned and I think cannot be stood upon for this the term by the surrender is gone indeed and merged in the Inheritance yet the Trust of that term remains in Equity and if this Trust be destroyed by him that had it assigned to him this Court has full power to set it up again and to decree the term to him to whom it did belong or a recompence for it therefore I think that stands not at all as a point in the Case or as an objection in the way As to the next thing the common recovery now suffered by the now Duke that doth bar the remainders to the other Brothers And so also the trust of this term that I conceive to be so in case this can be interpreted to be a term to attend the Inheritance and indeed in the reciting part the Deed doth seem to say that it was intended to attend the Inheritance But by that part of the Deed which followeth after now this Indenture witnesseth there it is limited that the term should be to Henry Howard and the Heirs Males of his body until such time as the Honour of the Earl of Arundel by his elder Brothers death without Issue should come to him then to the Plaintiff which doth convey the Estate of the term in a different Channel from that in which the Inheritance is setled and taking this Deed altogether it doth limit this term in such various Estates that it can no way be construed to be a term attending the Inheritance and then I conceive the recovery doth not bar the trust for the recovery would bar the incident to any Estate as this would do here if it attended the Inheritance but being onely a term in Gross and a collateral thing I conceive the recovery has no operation to bar the trust in the term Then the Case singly depends upon the third point whether the Trust of a term thus limited to Henry Howard and the Heirs Males of his body until his Brother die without Issue whereby the Honour came to him with such contingent Remainders over be a good Limitation this is the Question and so in short the Case is but thus A Term of Two Hundred years is granted in trust that Henry Howard and the Heirs Males of his body shall receive the Profits until Thomas die without Issue Male of his body and then to Charles Howard and the Heirs Male of his body And in this case I am
am of opinion it fails in point of Limitation and ought to be decreed for the Defendant The Lord Chief Justice Pemberton's Opinion I Need not trouble your Lordship with opening the Case the truth is it is in short no more than thus My Lord Duke of Norfolk's Father the Earl of Arundel having created an Estate for 200 years and setled the Inheritance by one Deed Intail to himself for life and after to his Lady for life and then to his Son and the Heirs Males of his body and for default of such Issue to the other Son Charles and the Heirs Males of his body with several Remainders over Then by another Deed he does declare the Trusts of this term of 200 years which being to Henry and the Heirs Males of his body till my Lord Maltravers die without Issue Male and the Earldom descend to my now Lord Duke and after the determination of that Estate if he shall die without Issue Male then to come to Charles and the Heirs Males of his body whether this be a good Remainder to Charles is the Question For as to any thing of the Recovery or the Assignment I shall put it quite out of the Case and do not think it will have any influence upon the Case as it lies before us And indeed I do first think that the Earl of Arundel did certainly design that if my Lord Maltravers should die without Issue Male whereby the Honour of the Family should come to my Lord Duke that now is Charles should have this Estate and his intentions are manifest by creating this Term which could be of no other use but to carry over this Estate to Charles a younger Son upon the elder Sons dying without Issue And I do think truly that this was but a reasonable Intention of the Father for there being to come with the Earldom a great Estate that would so well support it it was reason and the younger Sons might expect it that their Fortunes might be somewhat advanced by their Father in case it should so happen It was a reasonable expectation in them and truly I think it was the plain intention of the Earl. And there is no great question but it might have been made good and effectual by the limitation of two Terms For if one Term had been limited to determine upon the death of Thomas without Issue and that to be for the now Duke of Norfolk and another Term then to commence and go over to Charles that would certainly have been good and carried the Estate to Charles upon that Contingency but as this Case now is I do think that this way that is now taken is not a good nor a right way for I take this Limitation to Charles to be void in Law. And as to that I know there is a famous difference of limiting Terms that are in Gross and Terms that attend the Inheritance As to Terms that are in Gross I think it will be granted because it hath been setled so often they are not capable of limitation to one after the death of one without Issue for so are all the Cases that have been cited I think further it is as clear that upon Terms attendant upon an Inheritance there may be such a Limitation to wit that a Term that waits upon an Inheritance after the death of one without Issue may go over to another But then it is capable of such a Limitation in that Case with this restriction that is if the Inheritance be so limited for though it be attendant ever so much upon the Inheritance yet that attendance cannot make it capable of another Limitation than that Inheritance is capable of For if I have an Estate in Fee-simple and have the Trust of a term attendant upon that and I will let the Estate of Inheritance descend to my Son I cannot in this case though the Term be attendant limit it that if my Son die without Issue that Term shall go over it is not capable of any Forreign Limitation whatsoever for as to that it is a Term in Gross it hath not the quality of a Term attendant upon the Inheritance at all for first it would fail of an Inheritance and a Free-hold to support it and further than a Term can be supported with a like Estate of Inheritance It will fail to be a Term attendant upon the Inheritance Now here the Estate of Inheritance is limited to Henry and the Heirs Males of his body with Remainders to Charles and the Heirs Males of his body Now thus the Term is capable of a Limitation to Henry and the Heirs Males of his body And for want of such Issue to Charles and the Heirs Males of his body because it hath an Inheritance on which it depends to go along with it and support it But to take this out of its right Course and Channel and put another Limitation upon it That upon the dying of Thomas without Issue whereby the Earldom shall descend this shall go over to Charles alas it cannot be because it hath no Free-hold or Inheritance to support it And then besides it could not have that reason that the Law intends for its permitting such Limitations to Terms attending the Inheritance for I take it the reason why Terms are admitted to be attendant upon the Inheritance and to be capable of Limitations to go along with the Inheritance is their relation they have to the Inheritance and because it is for the benefit of the Inheritance and that I conceive was the onely reason that at first guided these Judgements of the Court of Chancery that these Terms should be admitted to wait upon the Inheritance to protect it when Mortgages were made in former times by Feoffments upon condition of payment of money we hear of none of these Terms But in the latter part of Queen Elizabeth's time and since the way of limiting Terms in Mortgages came up in use and then upon the buying of Inheritances came in the Trust of these terms and they that purchased were advised to keep those Terms on foot to protect their purchased Inheritance I must look upon this indeed as a new Case of Novel invention for in truth I think in truth it is Prima Impressionis and none of the former Cases have been exactly the same For this Term here does partake somewhat of a Term in Gross and somewhat of a Term attendant upon an Inheritance and if there should be such a Limitation admitted such a forreign Limitation as this is I call it Forreign because it is not that which goes along with the Inheritance If that be allowed we know not what inventions may grow upon this for I know mens Brains are fruitful in inventions as we may see in Matthew Manning's Case It was not foreseen nor thought when that Judgement was given what would be the Consequence when once there was an Allowance of the Limitation of a Term after the death of a person presently it was