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-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
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
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
Case 't was limited if William had no Issue at the time of his decease in this Case if Tho. had no Issue at the time of Henry's death Put case it had been limited that Tho. had dyed without Issue in thirty or forty or any number of years or if it had been limited that Tho. had dyed without Issue in the Life of Henry and five or six more persons it might have been so limited as well as to one Life and the Law is the same It is more Contingent when the Cessor is limited to be upon the death of Tho. without Issue in the life of Henry then it had been if Tho. had dyed without Issue generally for he may dye without Issue though he dye not without Issue in the life of Henry First the sum of this is if such limitation of a Term as this is be not good at Law the Trust of a Term cannot be good in Chancery Secondly the general scope of the Settlement of the Term was that the Term shall wait on the Inheritance Intail which now cannot be because it is altered Again if the Law should be otherwise that Charles have the whole Term then those in Remainder shall be utterly defeated of it and shall not go to Charles his Son and Heir but to the Executors which was never intended by the Deed. M d. I conceive that notwithstanding the late Judgments in Opinions and Considerations for the younger Brothers Sir J. C Chancery have been that if a Term of years be limited by way of Trust or otherwise to any person and his Heirs Males with Remainders over or other limitations to any other persons those Remainders and Limitations are void and the whole Term shall be to that person and his Executors and Administrators to whom it was first limited in Tail yet this Case is different from all those Cases by reason this was onely a Temporary Provision as to Mr. Henry Howard until that Contingent of the death of the Duke of Norfolk should happen and then absolutely to cease as to Mr. Henry Howard And then the Trust of the Term is declared to be for the preferment of the younger Sons as is above expressed and albeit that Marriot hath in plain breach of Trust by his Assignment enabled the now Duke to destroy the Term in point of Law yet the Chancery may subject the Lands during the Remainder of the term to the Trustees for the younger Children as agreeable to the intention of the Deed of Trust and to all Honesty and Equity and that Equity I take is in no sort bar'd by the Fine if a Bill be exhibied in time J. C. 8 Jan. 1677. I concur with this Opinion because it is no absolute Trust Sir R. S. not so much as for the life of Henry but a limited Trust upon a Contingent which as in its Creation it might so in Fact it did happen in the life-time of Henry and consequently there is no room for any Construction to be made that the Trust of the whole term vested in Henry against the express limitation thereof R. S. I conceive first that if by Act executed my Lord of Arundel Mr. Offley had created this term to my Lord Dorchester and the rest of the Trustees in trust for Henry Howard in tail and after his death to the Brothers in tail that had been a perpetuity and not good for a term though as to that there is a difference taken in Tatten and Mollenex Case More 809 810. in Chancery by the Lord Chancellour and the Judges assistant which seems to be reasonable that the first party that is the Cestique Trust against his Issue may dispose of it but not against him in Remainder for Equity preserves it as to the Remainder so then if it had been to Henry Howard and the Issues of his body the Remainders to the Brothers Though Henry Howard could as to his Issue dispose of it yet as to his Brothers it stood good if that Resolution holds good and the Books says it was grounded upon presidents in that Court too But this case differs where the course of Equity is against it therefore first there is onely by this Conveyance a reception of the profits in Henry Howard and the Issue Male of his body until the Dignity of Arundel come to him And it is not in trust for him and his Issue Male so as he has not the entire trust in him as the other Sons have by the penning of the Deed. Secondly 't is not absolutely in trust in him and his Issue Male but temporary in them upon the falling of the Dignity of Arundel sooner or later and he is not a Cestique trust within any of the Statutes proceeding in the Statute of Uses but has but a limited pursuance of the profits but the trust vests compleatly in the Brothers after Thirdly then the Marquess of Dorchester assigns the term to Marriot and he assigning to H. H. whereby he has in strictness of Law extinguished it whereby there is a wrong and deceit done to the Brothers he is bound in equity and good Conscience to make them recompence and satisfaction for this wrong and it appearing that H. H. was privy to this with a design to extinguish it and that extinguishment turning to his advantage he is likewise compellable in Equity to answer it out of his Estate either by creating a new Term in this Land or by some other way according to the Resolution of the Judges in my Lord of Ormon's Case Hubbard 350. I have seen the Opinions of Mr. Attorney-General Serj. Sir W. Ellis Maynard and Serj. Pemberton whose Opinions I do much value and have great esteem for Mr. Attorney saith that the Term to H. H. and the Heirs of his body under other limitations than the Inheritance was the whole Term vested in H. H. and the Limitations thereof to the other Brothers are void I conceive the whole trust of the Term is not limited to H. H. but part of the Trust so long as Thomas the deceased Duke shall have Heirs Males of his body and until the Earldom comes unto him so as the Trust is but a qualified and limited Trust in H. H. so as this Trust to H. is now ended by way of limitation to H. H. and then there is a new Trust springs and arises to the younger Brothers not by way of Remainder of a term but the Trust to H. H. being ended and determined I conceive a new one may well arise and spring up to the younger Children admitting it were a trust of a term in Gross it is not a Remainder but a future Contingent grant and a limitation to them as it is in Pell and Browns Case Secondly If it be to attend the Inheritance then he conceives clearly the Recovery having barred all Remainders the Term and the trust of the Term is also barred If this Trust had been to wait upon all the Estate as they came