Selected quad for the lemma: land_n
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A36820
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The Duke of Norfolk's case, or, The doctrine of perpetuities fully set forth and explain'd
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1688
(1688)
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Wing D2513; ESTC R17683
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59,123
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72
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discerned there was the same reason for after twenty mens lives as after one and so then it was held and agreed that so long as the Limitation exceeded not Lives in being at the creation of the Estate it should extend so far That came to grow upon them then and now if this be admitted no man can foresee what an ill Effect such an ill Allowance might have there might such Limitations come in as would incumber Estates and mightily entangle Lands This is certain such an allowed Limitation would adde a greater check to Estates than ever was made by Limitations of Inheritance For when an Estate of Inheritance was limited to a man and his Heirs Males of his body with Remainders over and a Term was limited accordingly to wait upon the Inheritance In that Case he that had the first Estate-tail had full power over the Term to alienate it if he pleased for it is not an Estate within the Statute De Dominis and I doubt not that had a great Influence upon the Judges when they made the difference between Terms for years in Gross and Terms attendant upon the Inheritance For Terms in Gross they could not be aliened in such a Case but Terms attending upon the Inheritance though under such Limitations the parties could alien them But now if this Limitation in question were good then Henry could not part with it because it is to him and his Heirs Males of his body under a collateral Limitation of his brothers dying without Issue and the Earldom descending to himself and then his Estate was to determine and so it would fetter that which if it had been a Term attendant c. would have been alienable I have seen the time often when they have refused to carry Cases further than the Precedents have been in former times and peradventure it would be dangerous if we should do so here and it seems to me to be an odd kind of Estate as this Limitation makes it and if such a construction as the Plaintiff would have should be made it would bring it under a great uncertainty To take this Estate as it stands in Henry and the Heirs Males of his body it is by this Limitation made and so indeed I think it is a Term that waits upon the Inheritance But if this that is contended for be admitted to be a good Limitation upon the Contingency of Thomas's dying without Issue Male then the Estate in Charles would be a Term in Gross for it hath no Inheritance to attend upon Then suppose Henry had died without Issue Male in Charles's life-time then it is a Term attendant upon the Inheritance again If Charles die in the life of Henry it goeth to the Executors If Henry in the life of Charles it goes to the Heirs Therefore I think that this Estate being limited in another way and being it would endure a strain further than any yet has been attempted and it being to commence upon Thomas's dying without Issue Male and not attendant upon any Inheritance it is such an Estate as the Law cannot allow of but void in Limitation and Creation and so I take it the Plaintiffs Bill ought to be dismissed THE Lord Chancellor NOTTINGHAM'S ARGUMENTS 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 Dignity of Earl of Arundel 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 Tail to the rest Thus is the matter settled 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 Alehorn 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 Earldom 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
a Life viz. the Honour of A. descend to H. H. which must be to him in his lifetime or not at all To which I answer that though a Contingency be remote in it self and not likely to happen within a Life the time within which it ought to happen or not at all doth not alter the case and therefore in Child and Bayly's Case reported in 2d of Coke and by Jones and Palmer the failure of Issue was limited to be within a Life viz. a Term was devised to one and his Assigns and if he die without Issue of his body living at the time of his death then to another this was adjudged no Remainder unto that other and though 't was objected that the Contingency must happen within the compass of life or not at all yet no regard was given to that This Case seems to me in reason to be the same with ours I do observe that no Case can be found whether limitation either by way of Trust or Devise of a Term hath been allowed to take effect upon a failure of Issue or after death of the party to whom the first Estate was limited without Issue And as in Child and Bayly's Case the Judges say as I have often heard them say in other Cases that if Matthew Maning's Case was now to be adjudged it would not be so adjudged and that case is a Term is demised to one for life and after his death to another which is allowed good and that they would not go a step farther so I say in this Case it must go further than Manning's Case or any other Case that adjudged to make it void William Jones The Case is new and without any express President and Serj. M d' s opinion 20 Nov. 1680. therefore not capable of so certain a determination as would be expected in case advice were to be given whether a Purchaser should deal in the buying of a Lease or not Yet though there be no President in point yet such-like Cases have been determined as guide my Judgement and Opinion to be scilicet that as this Case is circumstantiated Charles hath not nor can have a right to the Trust of the Term the Reasons and ground of my Opinion is as followeth First The Trust of the term for years in gross and separate from an Inheritance cannot be intailed in Possession or Remainder but yet where there is a Term for years in being if the Inheritance of the Land be intailed with Remainders over there the Term may be limited to wait upon the Inheritance according to the several Intails and such limitation is good so long as nothing intervenes to interrupt or disturb it But I conceive is not capable of such Priviledges of Intail as Inheritance is for the Intail is confirmed by the Statute of Westm 2d de bonis but the attendance of the Term upon the Inheritance intailed is not within the Statute de bonis c. but is a Creature of the Chancery and in several Cases may be destroyed and barred though no Fine and Recovery or other bar be made of the Inheritance I conceive such case if the Tenant intail Alien without Fine or Recovery for valuable Consideration the Issue Intail shall avoid the Inheritance the Chancery shall never help him to avoid the Lease In this particular Case it is clear that neither Charles nor any in Remainder can recover this Term at Law but onely by suit in Chancery and in Chancery shall never recover where the limitation of such a Term in being is not supportable in Common Law which in this Case it is not as I conceive for take the Case without the Contingency that Henry was Tenant Intail Remainder to Charles Intail c. the Recovery suffered by H. would have bar'd Charles and the rest of the term as well as of the Inheritance But the sole Objection here is that the trust of the term to Henry is expressed that it shall determine quo ad Henry and his Issue in case Tho. Duke of Norfolk dye without Issue living Charles as in this case he did The strength of this Objection lies in this First That the Cessor of the Trust is to be upon the death of a Stranger without Issue scil on Tho. Duke of Norfolk on whom the Lands were not Intailed And secondly The term is not to cease but upon the death of Tho. Duke of Norfolk without Issue in the life of Henry As to the first it will make no difference in Reason and in the pollity of the Law where the Cessor is limited on the death of a Stranger without Issue or of the Tenant Intail without heir of his body For first In both Cases the possibility is remote and not regarded in Law where a term is so limited and so were the resolutions in Childs and Bayly's Case and divers others This would be a way to set up a perpetuity as strongly as that it was limited upon the death of the Tenant in tail without Issue Put the case there be Father and several Sons A. B. and C. and the Father is seized in Fee of the reversion of Lands after a Lease of 200 years he settles the Inheritance upon his eldest Son in tail with Remainders in tail to his other Sons and this Lease being in Trustees for him at the same time causes the Lease to be setled in Trustees in Trust for the Sons to wait on the Inheritance in Trust accordingly provided that the second Son dye without Issue in the life of the Father or Son the Trust of the eldest Son to cease I conceive this would not be maintained in Equity if the second Son should not alien by Fine and Recovery As to the Second Objection that the Cessor is on the Death Mic. 17. Jac. R. B. of Tho. without Issue in the Life of Henry whereby the Contingency is reduced to happen in the Life of one person viz. Henry and not at large viz. of the death of Tho. without Issue I conceive no difference made thereby and it is in effect the point adjudged in Child and Bayly's Case which was thus French a Termer for 76 years demises to his Wife for Life Remainder of the Term to W. his Son and his Assigns Provisee That if his Son W. dyed without Issue of his body then living That T. his Son should have the Term or Interest Adjudged then in B. R. which was three years after affirmed Mic. 20. Jac. in the Exchequer Chamber by Hobart Winch Denham Hutton and Jones that the Demise to Tho. was void In that Case the Contingency did expect during the life of W. onely as here it is on the life of H. and the Reasons of their Judgments both in the Kings Bench and Exchequer-Chamber in effect of all the Judges of England at that time was because it might tend to make a perpetuity and that this new-invented way of Intailing of Terms in no sort to be favoured in Law. In Child's