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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

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

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

it had been a void limitation to Charles if then the addition of those words If Thomas dye without Issue in the life of Henry c. have not mended the matter then all that addition of Words goes for nothing which it is unreasonable and absurd to think it should 3. Another thing there is which I take to be unanswerable and I gather it from what fell from my Lord Chief Justice Pemberton and when I can answer that Case I shall be able to answer my self very much for that which I am doing Suppose the Provisoe had been thus penned And if Thomas dye without Issue Male living Henry so that the Earldome of Arundel descend upon Henry then the term of 200 Years limited to him and his Issue shall utterly cease and determine but then a new Term of 200 Years shall arise and be limited to the same Trustees for the Benefit of Charles in Tail This he thinks might have been well enough and attained the end and intention of the Family because then this would not be a Remainder in Tail upon a Tail but a new Term created Pray let us so resolve Cases here that they may stand with the reason of mankind when they are debated abroad Shall that be reason here that is not reason in any part of the World besides I would fain know the difference why I may not raise a new springing Trust upon the same Term as well as a new springing Term upon the same Trust that is such a chicanery of Law as will be laught at all over the Christian World 4. Another Reason I go on is this That the meanness of the consideration of a Term for years and of a Chattel Interest is not to be regarded for whereas this will be no reason any where else so I shall shew you that this Reason as to the Remainder of a Chattel Interest is a Reason that has been exploded our of Westminster-Hall There was a time indeed that this Reason did so far prevail that all the Judges in the time of my Lord Chancellor Rich did 6 Edvardi 6. deliver their Opinions That if a Term for Years be devised to one provided that if the Devisee dye living J. S. then to go to J. S. that remainder to J. S. is absolutely void because such a Chattel Interest of a Term for Years is less than a Term for Life and the Law will endure no limitation over Now this being a Reason against Sense and Nature the World was not long governed by it but in 10 Eliz. in Dyer they began to hold the Remainder was good by Devise and so 15 Eliz. seems too and 19 Eliz. it was by the Judges held to be a good Remander and that was the first time that an executory Remainder of a Term was held to be good When the Chancery did begin to see that the Judges of the Law did govern themselves by the reason of the thing this Court followed their Opinion the better to fix them in it they allowed of Bills by the remainder Man to compel the Devisee of the particular Estate to put in security that he in Remainder should enjoy it according to the Limitation And for a great while so the practice stood as they thought it might well because of the Resolution of the Judges as we have shewn but after this was seen to multiply the Chancery Suits then they began to resolve that there was no need of that way but the executory Remainder Man should enjoy it and the Devisee of the particular Estate should have no power to bar it Men began to presume upon the Judges then and thought if it were good as to Remainders after Estates for Lives it would be good also as to Remainders upon Estates Tail That the Judges would not endure and that is so fixed a Resolution that no Court of Law or Equity ever attempted to break in the World Now then come we to this Case and if so be where it does not tend to a perpetuity a Chattel Interest will bear a Remainder over upon the same Reason it will bear a Remainder over upon a Contingency where that Contingency doth wear out within the compass of a life otherwise it is only to say it shall not because it shall not For there is no more inconvenience in the one than in the other Come we then at last to that which seems most to choak the Plaintiffs Title to this Term and that is the resolution in Child and Baylie's Case For it is upon that Judgment it seems all Conveyances must stand or be shaken and our Decrees made Now therefore I will take the liberty to see what that Case is and how far the Opinion of it ought to prevail in our Case 1. If Child and Baylie's Case be no more than as it is reported by Rolls part 2. fol. 129. then it is nothing to the purpose A Devise of a Term to Dorothy for life the remainder to William and if he dyes without Issue to Thomas without saying in the life of Thomas and so it is within the common Rule of a Limitation of a Term in Tail with Remainder over which cannot be good But if it be as Justice Jones has reported it fol. 15. then it is as far as it can go an Authority for it is there said to be living Thomas But the Case under favour is not altogether as Mr. Justice Jones hath reported it neither for I have seen a Copy of the Record upon this account and by the way no Book of Law is so ill corrected or so ill printed as that The true Case is as it is reported by Mr. Justice Crook and with Mr. Justice Crooks Report of it doth my Lord Rolls agree in his abridgment Title Devise 612. There it is a Term of 76 Years is devised to Dorothy for Life then to William and his Assigns all the rest of the Term provided if William dye without Issue then living then to Thomas and this is in effect our present Case I agree it But that which I have to say to this Case is First It must be observed that the Resolution there did go upon several Reasons which are not to be found in this Case 1. One Reason was touched upon by my Lord Chief Baron That William having the Term to him and his Assigns there could be no Remainder over to Thomas of which Words there is no notice taken by Mr. Justice Jones 2. Dorothy the Devisee for life was Executrix and did assent and grant the Lease to William both which Reasons my Lord Rolls doth lay hold upon as material to govern the Case 3. William might have assigned his Interest and then no Remainder could take place for the Term was gone 4. He might have had Issue and that Issue might have assigned and then it had put all out of doubt 5. But the main Reason of all which makes me oppose it ariseth out of the Record and

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.