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
upon the death of the party to whom the term was so given it shall go to his Executors as a Chattle and not to his Heirs Male. 2. I do conceive it will not be denied by any that if there be a long term for years for a 1000 years more or less in trust and a man purchases or settles the Inheritance to the use of himself for life the Remainder in Tail the Remainder in Fee and declare that the trusts of the term shall wait upon those Estates and fall in with them But that this trust of the term shall go along with all the Estate and shall not be merged in any of them and this trust shall not go to an Executor but shall go along with the Estate and if the tenant in tail dye without Issue it shall go along with the next Remainder man in tail and after his death without Issue it shall go to him in Fee simple and attend all the Estates in Remainders be they never so many And this I conceive is the common course in Chancery to incorporate such trusts to go with all the Estates This is not an absolute Trust for Henry and the Heirs Male of his body but a limited and qualified Trust as long as Duke Thomas's elder Brother lived and hath Heirs Males of his body and until the Earldom of A. doth come unto him so as by the death of Duke Thomas without Issue the Trust to Henry which was but a limited Trust is now determined and vanquished as to Henry As this was a contingent trust in Henry but in Case Tho. was alive and had issue when the term was to begin so the continuance and duration of the trust of the term was but to last until the Earldom came unto him and it is the stronger for that this trust ends in Henry by way of Limitation Query How long shall Henry and his Issue have this Trust Answ Until Thomas die without Issue Male and the Earldom of A. come unto him both which hath happened so as the trust for Henry and his Issue is ended by way of limitation and is now disposed over to others as it may well be so as this is a new Trust that by a contingent subsequent Declaration takes away the Trust from Henry and settles a new Trust in the younger Children and it is to be considered that Henry is to have the Trust of this term not so long as he shall have Issue but so long as the Lord Maltravers shall have Heirs Male so as that makes it a collateral Limitation or Determination of the said Estate 4. The Equity and Justice of this Trust carries much weight with me and that condition the Lord Maltravers was in It was fit to settle the Trust in Henry so long as the Lord Maltravers had Heirs Male of his body and if they failed and that the Earldom of A. and great accession of Estate to come to Henry it was a great reason that the younger Children should be provided for and taken notice of And it will not be easie to blow off and overthrow a Trust in a Court of Equity contrary to the express mind and intention of him that made it for the provision of they younger Children especially it being made with so much Justice and Reason wherein he hath both a respect for his Honours Family and younger Children Obj. There is no Objection against all I have said which seems prima facie to carry weight with it and that is when the legal interest is come to Henry and he is Tenant intail in possession and suffers a common Recovery and bars all the Remainders Intail Query How can this trust which is an Accessary follow Estates Answ To which I answer first If the Trust had been to follow and wait upon the Estate this Objection had been the stronger but this trust is not absolutely to wait upon Henry's Estate but so long as Duke Thomas hath Heirs Male of his body and until the Earldom of A. come to him both which are happened he continues still Tenant Intail and yet this Interest is determined in the trusts Secondly this is a future contingent Interest that now is happened to the younger Brothers which cannot be barred and it may be resembled to Pell and Brown's Case 2 Cro. 590 591. A man demiseth his Land to his second Son Thomas and his Heirs and if he die without Issue leaving William his elder Brother then William should have it in Fee it was adjudged that this was a Fee Simple in Thomas the second And though regularly one Fee cannot descend on another yet this being a future contingent Interest that the Devise of the Fee Simple to William his eldest Son. Another great Question was Thomas the second Son suffered a common Recovery whether this did not bar the future contingent possibility of William And it was adjudged it did not Now here is as much a future contingent possibility of a Trust as there was of an Estate and more and therefore there is much reason that the future contingent possibility of a Trust should not be barred by a common Recovery as in that Case And as to that which is said that an Accessary cannot be without a substance and the Estates of the younger Children is to succeed and yet they have no proper Estate for Henry is now Tenant so as this is a personal trust for the younger Children independent of their Estates and if so then clearly this Recovery cannot bar their Estates Another reason why a Court of Equity should help and interpose in this Case may be because the Estate for years was conveyed by Marriot in breach of the Trust which a Court of Equity ought to maintain and support as much as they can First Because Marriot and the now Duke are not Purchasers for a valuable Consideration Secondly They came in with privity and had notice of the Trust And I conceive may and will notwithstanding these Acts make good these Trusts for the younger Children and if this be a new doubtful Case certainly I conceive it is the surest and safest way for a Court of Equity to make good the intention of him that made it and to preserve the Trust for the younger Children William Ellis 26 Feb. 1677. De Termino S. Hill. Anno Reg. Car. 2d Regis XXXIII XXXIV Anno Dom. 1681. Martis 24 die Jan. in Curia Cancellarii Howard versus Le Duc de Norfolk al. THis day being appointed for Judgement in this Cause the three Judges assisted the Lord Chancellor at the hearing viz. the Lord Chief Justice Pemberton the Lord Chief Justice North and the Lord Chief Baron Montague came into the Court of Chancery and delivered their Opinions Seriatim beginning with the Lord Chief Baron Montague and so upwards after whom the Lord Chancellor also delivered his Opinion The sum of all the Arguments as near as could be taken were as followeth The Argument of the
the Kingdom and ought to take place in this Court as well as any other Court. So I take it then that the Trust of a Term is as much a Chattel and under the consideration of this Court as the Term it self and therefore I cannot see why the Trust of a Term upon a voluntary Settlement should be carried further in a Court of Equity than the Devise of a Term in the Courts of Common Law. It is true where there is a long Term in being upon Mortgage and as a security which is determined it is of great conveniency that it should be kept on foot to protect the Inheritance and so it will lie still to wait upon the Inheritance and thereupon in many Descents it will go from Heir to Heir and that upon a particular consideration to attend and protect the Inheritance But for a meer Chattel to go from Heir to Heir is not the same case nor do I see any reason why this Court should carry such a Chattel any further than Devises of terms are carried at Common Law. Now let us see and a little consider what those Rules are and how they are appliable to this Case In both cases a Term may be limited for life to one with Remainders over though in the bare consideration of Law an Estate for life is a greater Estate than a Term for years but in case of an Estate-tail there can be no such thing therefore in Burgesses Case the Trust of a term is limited to A. for life the Remainder to his Wife for life the Remainder to the first second and other Sons successively and the Issue of their bodies and for default of such Issue to the Daughters of A. and their Issue the Remainder to the right Heirs of A. A. had no Son at that time living nor after but the Remainder over was to the Daughter of A. in being It was strongly urged that the Daughter should have the Trust vested in her and that the Trust for the Daughter should close with the Estate for life till A. should have a Son. But because there was a Limitation to the first Son of A. and the Issue of his body and the Remainder of the Daughter was but to take place after that Son died without Issue and so the others though it was not to a Son then in being But his Estate was in contingencies which did never happen yet the Court did not allow of any such thing as any Remainder that the Daughter should have but made a Decree for the execution of the Devisee so that it is clear there can be no direct Remainder of the Trust of a term upon an Estate-tail The Question then is whether there can be any contigent Remainder for this for this Case depends upon that consideration i. e. it is limited upon a Contingency if such a thing should happen in the life of a man and so it is a springing Trust and good that way My Lord I take it in this case where there can be no direct Remainder there can be no contingent Remainder though it happen never so soon Therefore if a Term be limited to one and his Heirs of his body and he die without Issue of his body within two years the Remainder over there can be no such Remainder limited at all and therefore no contingent Remainder for this Remainder is limited at the end of an Intail and that is so remote a consideration that as the Law will not suffer a direct Remainder upon it so upon a Contingency neither Now in this Case there is onely this difference if the Estate-tail in this Term had been limited to my Lord Maltravers as 't is here to Henry Howard and the Heirs of his body and if he die without Issue in the life of Henry c. then the Remainder over then it had been clear the Contingency had been limited upon the expiring of the Intail and though it be said that it expires within the compass of the life of a man yet that helps not in this Case at all as I conceive for I will put a case upon a Fee-simple upon Pell and Brown's Case A man limits an Estate in Fee-simple to a man and his Heirs and if he die without Heirs during the life of J. S. then to J. D. this is void and the Lord shall have it by Escheat and that though it be brought within the compass of the life of a man shall never be a good Limitation And if that Case of Pell and Brown had been that a man devised Land to a man and his Heirs whereby it would appear that it was intended the Devisee should have had a Fee-simple with a Remainder over upon a Contingency I take it this could not be good by way of executory Devise because a mans dying without Heirs which to lose his Fee-simple he must do comes not under the intention of the Law as of a Contingency An Estate for life in the judgment of the Law is of longer duration than a Term for years and the Rule in Child and Baily's Case is firm that the expiring of the Limitation of a Term in Tail within the life of a man will not make good a Limitation of the Remainder over which I hold to be a good Rule and the reason of it I conceive will reach to this Case For what is the difference here is a Contingency indeed but it is to have an Estate-tail expire within one Life which I take to be the same case Suppose the Term had been limited to Henry and the Heirs Males of his body so long as Thomas shall have Heirs Male of his body that would sure have cut off the Remainder and what is the difference For it doth depend upon Thomas dying without Issue whereby the Earldom should descend then when it is limited to Henry and the Heirs Males of his body And if Thomas die without Issue in the life of Henry then over this can no more abridge it than if he had said if Henry die without Issue during the life of another man. So that I think the whole Term is swallowed in the Estate-tail upon this consideration and there can be no Remainder of it no executory Devise nor any springing Trust to Charles upon this Contingency and my Lord upon that reason I think this Settlement fails and is disappointed as to the younger Brothers If it had been limited to Henry for Life onely and no further then let the Contingency have been what it would that were to happen in his life if complicated with several ascendents yet it should be good in Remainder because the Law doth allow a Remainder directly upon an Estate for Life and so it would also in Contingency if that were to happen during the continuance of the particular Estate But I take this to be a step further than any of our Resolutions in Law have gone yet and therefore I cannot see reason to extend the Exposition any further but