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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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