THE Duke of Norfolk's CASE OR THE DOCTRINE OF PERPETUITIES Fully set forth and Explain'd Printed Anno Dom 1688. TO THE READER Courteous Reader THis Case in all its parts hath been Collected with all the Care imaginable by several good Hands and what grand agitation it received is not unknown to any that know Westminster-Hall It may be recommended to the World for Publick use upon that score alone For what can be more reasonably thought to please and take with Men of Judgment in any Profession than to peruse the Skill and Arts that have been curiously and with as great integrity made use of by men of the most Famous Reputation in what they profess Besides too if thou dost but consider the great Deliberations and the mighty Cautions that have been always used by all Persons concern'd in the Conduct Debate and Judgment of this Cause till after many Debates and Hearings at the Bar it came to receive its final Judgment in the highest Court of the Kingdom before the Lords in Parliament assisted by all the Judges of England Thou wilt certainly conclude That no unkind acceptance ought to demur upon this Case Here is variety of Learning manifest in the sundry Conceptions of Great and Learned Men but the Nicety lies chiefly upon the Doctrine and Explication of that abstruse Notion in Law called Perpetuities concerning which the Sage Opinions introductive to this Case of the great Council will better instruct thee that were prudently taken by both Parties before the Cause commenc'd and undoubtedly serve and answer the True Ends of a Preface infinitely beyond what thou canst expect from me Their Opinions in Private are always delivered with as much Candour and Caution as their Arguments at the Bar. And the one may be truly said to be of as great use to the Publick when their Opinions can be had if the Cause be Meritorious and will bear it as the other Reader it will be wholly impertinent to hold thee here and I should run my self upon an absolute necessity if I should detain thee longer from the fruition of those delicacies I present thee of troubling thee with my impertinent Complements for presenting thee with a needless and impertinent Epistle Wherefore enter in see it thy self and peruse it for thy profit and satisfaction Farewell THE Duke of Norfolk's CASE A. Bargains and Sells to L. the Barronies of Gr. and 20 Martii 1647. Br. for 10 Months A. Grants the Reversion of those Baronies to 21 Martii 1647. R. and D. and their Heirs to the use of A. for life Remainder to E. the Wife of A. for life Remainder to R. and D. c. for 200 years upon trusts to be declared by another Deed of the same date Remainder to H. H. his second Son and the Heirs Males of his body Remainder to C. H. his third Son and the Heirs Males of his body Remainder to E. H. his fifth Son and the Heirs Males of his body Remainder to A. H. his sixth Son and the Heirs Males of his body Remainder to B. H. and the Heirs Males of his body Remainder to the right Heirs of A. L. Attornes Tenant to R. and D. c. A. makes another Deed declaring the Trust of the Term 21 Martii 1647. for 200 years reciting it and the uses in the last-mentioned Settlement says in the reciting part That 't is intended that the Term should attend the Inheritance the Profits be received by H. H. and the Heirs Males of his body and for default of such Issue such other persons who according to the limitation of Uses should have had them if no such term had been so long as T. H. Eldest son of A. or any Issue Male of his body shall live But in case T. H. die without Issue of his body in the life of H. H. not leaving his Wife ensient with a Son or that after the death of E. H. by failure of Issue Male of T. H. the honour of A. should descend on H. H. then H. H. and his Heirs to be excluded of the Trust then the Indenture witnesseth that the Term shall be upon the Trusts and under the restrained Limitations and Proviso's after-mentioned viz. If T. H. or any Issue Male of his body be living in trust for H. H. and the Heirs Males of his body until by the death of T. H. without Issue Male and not leaving his Wife ensient with a Son or after his death by failure of Issue Male the honour of A. descends to H. H. and in case the Honour shall not descend to H. H. that after the death of H. H. the Trust shall be for the Heirs Males of H. H. and for default of such Issue in trust to permit such other persons and their Issue Male respectively to whom the Free-hold or Inheritance is limited by the former Deeds to take the profits as if no such Lease were And in case the Honour of A. descend upon H. H. then the Trust for H. H. and his Issue Male to cease And then as to the Barony of Gr. in trust for T. H. and the Heirs Males of his body Remainder to T. H. and the Heirs Males of his body Remainder to F. H. and the Heirs Males of his body Remainder to B. H. and the Heirs Males of his body Remainder to H. H. and the Heirs Males of his body Remainder to the right Heirs of A. the Father And as to the Barony of Br. as to one third part of it in trust for E. H. and the Heirs Males of his body Remainder to F. H. and the Heirs Males of his body Remainder to B. H. and the Heirs Males of his body Remainder to T. H. and the Heirs Males of his body Remainder to H. H. and the Heirs Males of his body Remainder to the right Heirs of A. And as to another third part of the Barony in trust for F. H. and the Heirs Males of his body with like Remainders to the other Brothers ut supra Remainders to the right Heirs of A. And as to the other third part in trust for B. H. and the Heirs Males of his body with the like Remainders to the rest of the Brothers ut supra A. died in 1652. E. the Wife of A. died in 1673. and then the term of 200 years commenced D. the surviving Trustee at the request of H. H. assigned 20 Novemb. 1675. the term to one Marriot Marriot assigned the term to H. H. 1 Dec. 1675 H. H. by Bargain and Sale enrolled sells to M. to make him 24 Octob. 1675. Tenant to the Precipe for suffering a Recovery The use of the Recovery declared to be to H. H. and his 25 Octob. 1675. Heirs T. H. the eldest Son of A. died without Issue or having ever Nov. 1677. been married Query If the Trust to H. H. be good and the other Trusts limited to the other Brothers on the Contingent in case T. H. died whereby
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
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