in possession it had been the stronger but as this Case is I conceive the Trust will wait upon the Estate of H. H. for so long as Tho. lives and hath Heirs Males of his body and until the Earldom come unto him and the Trust of Henry determines and then a new Trust springs up to the younger Children which is a future contingent trust so as a common Recovery can bar this Trust so long onely as they did wait upon the Estate of H. H. which is now determined by a collateral Limitation and the Recovery cannot enlarge the Trust to H. H and make that to continue which in its Creation was to end when such a Contingent happens which hath now hapned if H. H. had not suffered a common Recovery he had had an Estate-tail yet no Trust this is a future contingent Trust to the younger Children which cannot be barred by a common Recovery W. Ellis 8 Martii 1677. 1. The Surrender or Grant of the Lease for 200 years to Serj. M d for the Brothers Henry nor the extinguishment of the legal Interest of the term doth not prejudice the equitable Trust of the term so long as the Lands comes not into other hands viz. of a Purchaser without notice of the Trust which is not in this Case 2. An Intail cannot be made of a term in Gross as if a Lease for 1000 years be made in trust for J. S. and the Heirs of his body with Remainders over J. S. may dispose of the whole term and such disposal is good against his Issue and those in Remainder and if he die without such disposition made by him his Executors shall have the benefit of the Trust and not his Issue or the Remainder 3. But a Term may be limited to attend and wait on the Inheritance by way of a trust as if a long term of years be the Reversion in Fee if the Reversion be purchased in Fee or setled in tail the term may be setled to the use of the Fee or Tenant intail and in that case if the Tenant intail die or the Tenant in Fee die the Heir or Issue shall have the benefit of the trust and not the Executors c. 4. But in that Case if the Tenant in Fee die in debt and no other sufficient Assets to pay the debt in that case the Executor shall be preferred before the Heir although the debt be such as the Heir is not bound or liable unto 5. And I conceive that in that case if the Tenant intail that hath the Equity of a term waiting on it do purchase the term and alien or obtain the Trustee of the term to make an alienation of the term it shall bind the Issue intail and him in Remainder though the Alienation be by Deed without Fine or Recovery because the term in Law is well aliened without Fine c. And the Statute of Westm 2d de bonis extends not to a Case of a term 6. Yet it is true this doth not absolutely determine the Case in question upon three accounts First It is a new Case not yet brought in question Secondly Because here is a springing and a new trust by accident subsequent and alters the Trust and changes the Intail of the term to other persons from Henry to the younger Children and on such accident takes away the Trust wholly from Henry the first Tenant in tail And Thirdly the Change seemeth to be grounded on great reason for the Lord Maltravers being in such condition as he was in there was great reason to disable him and provide for the younger Children as is done by Case and if Henry should come to be Earl and have addition of Estates that the other younger Children should also have accession of Estate to them and so it is by this Deed of trust provided But notwithstanding these reasons and this difference of the Case in these circumstances from other Cases already resolved and the contrary Opinions that I have seen I am rather of the opinion that in this Case the younger Brothers are bound by the Recovery suffered by Henry than convinced that they are not bound for I find that the Reasons given e contra touch not my doubt fully The Reasons of my Opinion are viz. 1. For the Recovery suffered and the time when it was suffered to wit before the Lord Maltravers dyed for till he dyed Henry was Tenant in tail and had power by a Recovery to bar and dispose of the whole Inheritance as well of his his own Estate tail as of those in Remainder The term of years was but accessary to serve and attend the Inheritance which was principal 2. And the onely reason that made such intailing or limitation of the term good was because it was to wait on the Inheritance first to Henry in tail and so successively to the other Brothers or else as it is abovesaid the limitation had not been good And when that reason fails and the cause why it was a good limitation ceaseth and is taken away the effect of it doth likewise cease 3. The change of the term into thirds doth not change the Estates tail of the younger Brothers and cannot stand with the intention of the Deed of Trust For I think it clear if Charles admitting he come to the Inheritance as owner or if in the life of Henry he could get a Tenant of the Freehold of all or any part of the Land to joyn with him should then suffer a Recovery it would bar Edward Francis and Bernard of so much of the third part whereof such Recovery should be suffered viz. of the whole Inheritance and a third of the term and the residue to wit the other two parts would respectively cease and be intailed as to the term and be wholly in the respective disposition of Edward and the rest and go to their Executors not to their Issues or the Remainders And yet upon long consideration of the Case there is another and a further ground of my doubt of what hath been said viz. not onely because it is a new Case and concerneth a Great and Noble Family but on another and further ground observed and insisted upon by such great Opinions contrary to what I have above observed viz. that it is not onely a springing and contingent use to the younger Brothers respecting them but because the Original Trust to Henry viz. that the Trust to him and his Issue is as to him and them under a Limitation and that not so long as he the Tenant in tail shall have Issue but so long as the Lord Maltravers shall have Issue Male and on that reason the Case is more doubtful M d. 1. I agree that if a man have a term for a 1000 years and Sir W. Ellis he grants and demiseth this to one and the Heirs Males of his body the Remainder to another and his Heirs that this term cannot be intailed nor a Remainder limited upon it and that
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
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