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
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
Lord Chief Baron Montague Charles Howard is Plaintiff and the Duke of Norfolk and others are Defendants The Plaintiff by his Bill seeks to have Execution of a Trust of a term of 200 years of the Barony of Grastock which was made by Henry Frederick Earl of Arundel and upon the Bill Answers Deeds and other Passages in this Cause contained is this Henry Frederick Earl of Arundel by Lease and Release of the 20th and 21th of March 1647. did settle the Barony of Grastock and of Burgh and several other Lands to himself for Life then to the Countess Elizabeth his Wife for life and then there is a term created for 99 years which we need not mention in this Case because it is determined and after the death of the Countess there is a term for years limited to my Lord of Dorchester and other Trustees for 200 years under a Trust to be declared in a Deed of the same date with the Release and the limitation of the Inheritance after this term of 200 years is first to Henry Howard now Duke of Norfolk and the Heirs Males of his Body then to Mr. Charles Howard the now Plaintiff Brother of the said Henry and so to all his Brothers successively intail Male with the last Remainder to the Earl of and his Heirs then by a Deed 21 of March 1647 the Earl declares the Trust of the term of 200 years reciting first the uses of the former Deed and therein says it was intended that the said term should attend the Inheritance and the Profits of the Barony of should be received for 200 years by Henry Howard now Duke of Norfolk and the Heirs Males of his body so long as Lord Thomas eldest son of the said Earl of Arundel or any Issue Male of his body should be living but in case he should die without Issue Male in the life of Henry Howard not leaving his Wife ensient with a Son or in case after the death of Thomas without Issue Male the Honour of the Earldom of Arundel should descend to Henry Howard then he and his Issues to have no benefit of this term of 200 years but it was to descend to the other Brother Charles Howard the now Plaintiff as hereafter is mentioned and then comes Now this Indenture witnesseth and therein the Earl declares that it should be under the Limitations after specified viz. if Thomas Lord Howard had any Issue Male or Heirs Male of his body living Henry Howard then the Trustees should have the commencement of the term in trust for the said Henry Howard and the Heirs Males of his body till such time as the Earldom should come to Henry Howard by the death of Thomas without Heirs Males of his body and after to the other Brothers successively and the Heirs Males of their bodies and then doth divide the other Mannors with cross Remainders to the five Brothers then the Case goes on thus the Earl of Arundel dies in time in 1652 Elizabeth the Countess dies in 1673 then in 1675 my Lord of Dorchester the surviving Trustee assigns the Term to one Marriot he assigns it to the now Duke of Norfolk and the Duke the 24th of Octob. 1675 by Bargain and Sale makes a Tenant to the Precipe and then a Recovery is suffered and the Uses of that Recovery 25th of October are declared to be to the Duke and his Heirs Then Thomas Howard the former Duke died without Issue having never been married and that is in the year 1677 whereby the Honour came to the now Duke and so the Plaintiffs Bill is to have execution of the Trust of the term of the Barony of to the use of himself and the Heirs Males of his body This I conceive was opposed by the Counsel for the Defendant upon these grounds 1. That by the Assignment made by Marriot to my Lord Duke Henry the Term was surrendred and quite gone 2. The second ground was the common Recovery suffered which they say barred the remainders which the other Brothers had and so also would be a bar to the Trust of this term 3. And the other ground was that the Trust of a term to Henry and the Heirs Males of his body until by the death of Thomas without Issue the Earldom should descend upon him and then to Charles is a void Limitation of the Remainder As to the first that by the assignment of Marriot to Henry Howard the whole Term was surrendred and being so surrendred hath no existance at all that I find but was barely mentioned and I think cannot be stood upon for this the term by the surrender is gone indeed and merged in the Inheritance yet the Trust of that term remains in Equity and if this Trust be destroyed by him that had it assigned to him this Court has full power to set it up again and to decree the term to him to whom it did belong or a recompence for it therefore I think that stands not at all as a point in the Case or as an objection in the way As to the next thing the common recovery now suffered by the now Duke that doth bar the remainders to the other Brothers And so also the trust of this term that I conceive to be so in case this can be interpreted to be a term to attend the Inheritance and indeed in the reciting part the Deed doth seem to say that it was intended to attend the Inheritance But by that part of the Deed which followeth after now this Indenture witnesseth there it is limited that the term should be to Henry Howard and the Heirs Males of his body until such time as the Honour of the Earl of Arundel by his elder Brothers death without Issue should come to him then to the Plaintiff which doth convey the Estate of the term in a different Channel from that in which the Inheritance is setled and taking this Deed altogether it doth limit this term in such various Estates that it can no way be construed to be a term attending the Inheritance and then I conceive the recovery doth not bar the trust for the recovery would bar the incident to any Estate as this would do here if it attended the Inheritance but being onely a term in Gross and a collateral thing I conceive the recovery has no operation to bar the trust in the term Then the Case singly depends upon the third point whether the Trust of a term thus limited to Henry Howard and the Heirs Males of his body until his Brother die without Issue whereby the Honour came to him with such contingent Remainders over be a good Limitation this is the Question and so in short the Case is but thus A Term of Two Hundred years is granted in trust that Henry Howard and the Heirs Males of his body shall receive the Profits until Thomas die without Issue Male of his body and then to Charles Howard and the Heirs Male of his body And in this case I am
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
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
of Opinion that these Limitations to the younger Brothers upon this Contingency are absolutely void in the first Creation and are gone without the Surrender and that upon this Recovery Henry Howard now Duke of Norfolk ought to have the trust of the whole Term. The Expositions of Devizes of Terms or the Dispositions of the Trust of Terms have proceeded by many steps to higher degrees than was at first thought of by the makers It would be too long to give a distinct History of it but it is so plain that it is now a resolved and decreed thing and setled therefore it were in vain to tell you the steps taken towards it That the devize of a Term and the limitation of the trust of a Term to one and the Heirs of his body is good though Burgesses Case was onely for Life the Cases are very full in it On the other side where there is a limitation of a Term to one and the Heirs of his body there a positive Limitation of the Estate over after his death without Issue that I think also is as fully declared to be void I shall not cite Cases at large but onely those Points and Expressions in them which are peculiar and pertinent to this purpose there is Jinkins and Kennish's Case I think it was in the Exchequer there it was said it was such a total Disposition of the term to limit it to one and his Heirs Males that it would not admit of a Limitation over but adjudged to be void So in my Lord Rolls Abridgments 1 Part Tit. Devise fol. 611. 11 Car. 1. Leventhorp and Ashby's Case B. R. It is said that the Remainder of a Term to C. after it is limited to B. and the Heirs Males of his body is a void Remainder and fol. 613. he puts down the reason why the Remainder is void because the Limitation to one and the Heirs Males of his body is a full disposition of the Term. And if such Limitations over were permitted it would create perpetuities which the Law doth abhor Sanders and Cornishes Case Croke fol. 230. There it is resolved that the Devise of a Term in such a manner with Limitations after one another to make a perpetuity cannot be good For says the Book to limit a possibility and to limit the Remainder of a term after a dying without Issue stands not with the Rules of Law. Now to bring this Case within these Rules that if there be the Trust of a term to a man and the Heirs of his body no Limitation can be over I say then if this Estate be so limited to my Lord Duke by the name of Henry Howard the other will follow when there is a Limitation Intail though it cannot be properly stiled Intail of a Term yet it is a Disposition of that Term as long as the Tail lasts then there can be no Limitation over And as to that I think as the Deed is penned it may well be stood upon that here is an Estate given to Henry and the Heirs Males of his body For though the Deed says until by the death of Thomas without Issue the Earldom of Arundel shall descend upon him yet the first Limitation I think shall stop at the Heirs Male of his body and the Remainder over shall be then void But I will not stand upon that because I think I shall not need it but admit until by the failure of the Issue of Thomas the Earldom come to him makes it not an Estate to Henry and the Heirs of his body directly yet it gives an Estate to him and the Heirs of his body as long as Thomas has any Issue of his body and that I count to be all one as to the Operation of Law for each of the Estates must determine upon the persons dying without Issue which is too remote a Condition to limit the Remainders of a Term upon And this until he die without Issue and as long as he shall have Issue are terms Synonimous in my Opinion and so it being a Limitation to him and his Heirs of his body as long as Thomas liveth and hath Issue of his body it cannot be limited over and the rather upon comparing the former part of the Deed where there is an expression that it was intended the Estate should remain in my now Lord Duke so long as Thomas lived or had any Issue of his body Therefore I say there being in my opinion no difference as to operation of Law between the Limitations to a man and the Heirs of his own body and to a man and the Heirs of his body during the life of another and the Heirs of his body there can be no difference in the resolution It is as possible a disposition of the Term during the continuance of an Intail as the other and therefore no Remainder can be limited over But now the doubt in this Case that is made ariseth upon this point that this Limitation over to the Brothers is upon a meer Contingency and whether that be good I think is the main Question And truly upon the reasons of Child and Baily's Case I cannot think it is a good Limitation that Case has been so often reported that I need not put it at large In short this it was A Devise by A. of a Term to William his eldest Son and his Assigns and if he die without Issue then to Thomas his youngest Son there the Judges of the Kings-Bench did first deliver their Opinion that this was a void Limitation to Thomas And after it came into the Exchequer-Chamber and there by the Opinion of ten Judges it was affirmed and the reasons of the Judgement are not what was alleadged at the bar in this Cause but they went upon the ground because thereby a perpetuity would ensue and that which was observed by one of the Councel that the Term was given to him and his Assigns was onely an Answer to a Case put in the argument upon Child and Baily's Case which was the Case of Rhetorick and Chappell Hill. 9 Jac. R. 889. B. R. which was cited by my Lord Chief Baron Tanfield against the resolution of Child and Baily's Case to difference it from the Case then before them And though it was urged in Child and Baily's Case that it was given upon a Contingency to the younger Son which would soon be determined and end in a short time yet that weighed not with the Judges but that they ruled it to be a void Limitation and I met lately with a Judgement in the Common-pleas which crosseth that Case of Rhetoricks and Chappell's it was Hill. 31 and 32 Car. 2. Reg. 1615 Gibson's and Sanders's Case Matthews possessed of a long Term of years having Issue a Son and three Daughters makes his Will and devises his Chattel-Leases to his Son and if that Son die before Marriage or after Marriage without Issue that then they should go to the Daughters The Son doth Marry and dieth without
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
adjudged a good Devise though it were a possibility upon a possibility These Conclusions which I have thus laid down are but Preliminaries to the main Debate It is now fit we should come to speak to the main Question of the Case as it stands upon its own Reason distinguished from the Reasons of these Preliminary and so the Case is this The Trust of a Term for Two Hundred Years is limited to Henry in Tail provided if Thomas die without Issue in the life of Henry so that the Earldom shall descend upon Henry then to go to Charles in Tail and whether this be a good Limitation to Charles in Tail is the Question for most certainly it is a void Limitation to Edward in Tail and a void Limitation to the other Brothers in Tail But whether it be good to Charles is the doubt who is the first taker of this Term in gross for so it is I take it now become and I do under favour differ from my Lord Chief Justice in that point for if Charles die it will not return to Henry for that is my Lord Cook 's error in Leonard Loveis's Case for he says That if a Term be devised to one Co. 10. 87. and the Heirs Males of his Body it shall go to him or his Executors no longer than he has Heirs Males of his Body but it was resolved otherwise in Leventhorp's and Ashby's Case 11. Car. B. R. Rolls Abridgment Title Devise fol. 611. for these Words are not the Limitation of the time but an absolute disposition of the Term. But now let us I say consider whether this Limitation be good to Charles or no. It hath been said Obj. 1. It is not good by any means for it is a possibility upon a possibility Answ That is a weak Reason and there is nothing of Argument in it for there never was yet any Devise of a Term with Remainder over but did amount to a possibility upon a possibility and executory Remainders will make it so Obj. 2. Another thing was said it is void because it doth not determine the whole Estate and so they compare it to Sir Anthony Mildmay's Case where it is laid down as a Rule that every Limitation or Condition ought to defeat the intire Estate and not to defeat part and leave part not defeated and it cannot make an Estate to cease as to one person and not as to the other But Answ I do not think that any Case or Rule was ever worse applied than that to this for if you do observe this Case here is no Proviso at all annexed to the legal Estate of the Term but to the equitable Estate that is built upon the legal Estate unto the Estate to Henry and the Heirs Males of his Body to attend the Inheritance with a Proviso If Thomas die without Issue in Henry's life and the Earldom come to Henry then to Charles which doth determine the Estate to Henry and his Issue but the other Estate given to Charles doth arise upon this Proviso which makes it an absurdity to say that the same Proviso upon which the Estate ariseth should determine that Estate too Obj. 3. The graet matter objected is It is against all the Rules of Law and tends to a perpetuity Answ If it tends to a perpetuity there needs no more to be said for the Law has so long laboured against perpetuities that it is an undeniable Reason against any settlement if it can be found to tend to a perpetuity Therefore let us examine whether it do so and let us see what a Perpetuity is and whether any Rule of Law is broken in this Case A perpetuity is the settlement of an Estate or an Interest in Tail with such Remainders Expectant upon it as are in no sort in the power of the Tenant in Tail in possession to dock by any Recovery or Assignment but such Remainders must continue as perpetual clogs upon the Estate such do fight against God for they pretend to such a stability in human Affairs as the nature of them admits not of and they are against the Reason and the policy of the Law and therefore not to be endured But on the other side future Interests springing Trusts or Trusts Executory remainders that are to emerge and arise upon Contingencies are quite out of the Rules and Reasons of Perpetuities nay out of the reason upon which the Policy of the Law is founded in those Cases especially if they be not of remote or long consideration but such as by a natural and easie interpretation will speedily wear out and so things come to their right Channel again Let us examine this Rule with respect to Freehold-Estates and see whether there it will amount to the same Issue There is not in the Law a clearer Rule than this that there can be no Remainders limitted after a Fee simple so is the express Book Case 19 Hen. 8. in my Lord Dyer but yet the nature of things and the necessity of commerce between Man and Man have found a way to pass by that Rule and that is thus either by way of Use or by way of Devise Therefore if a Devise be to a Man and his Heirs and if he dye without Issue in the life of B. then to B. and his Heirs this is a Fee simple upon a Fee simple and yet it has been held to be Good. My Lord Chief Baron did seem to think that this Resolution Cro. Mich. 18 Jac. 590 did take its Original from Pells and Brown's Case but it did not so the Law was setled before you may find it expresly resolved 19 Eliz. in a Case between Hinde and Lyon 3 Leonard 64. 3. Leonard Which of the Books that have lately come out is one of the best and it was there adjudged to be so good a limitation that the Heir who pleaded riens peer descent was forced to pay the Debt and it had the concurrence of a judgment in 38 Eliz. grounded upon the Reason of Wellock and Hammond's Case cited in Beraston's Case where it is said Crooke Eliz. 204. in a devise it may well be that an Estate in Fee shall cease in one and be transferred to another all this was before Pells and Brown's Case which was in 18 Jac. It is true it was made a Question afterwards in the Serjeants Case but what then We all know that to be no Rule to judge by for what is used to exercise the Wits of the Serjeants is not a governing Opinion to decide the Law. It was also adjudged in Hil. 1649. when my Lord Rolls was Chief Justice and again in Mich. 1650. and after that indeed in 1651. it was resolved otherwise in Jay and Jay's Case but it has been often agreed that where it is within the compass of one Life that the Contingency is to happen there is no danger of a perpetuity And I oppose it to that Rule which was taken by one of the Lords the Judges That
where no Remainders can be limited no contingent Remainder can be limited which I utterly deny for there can be no Remainder limited after a Fee simple yet there may a contingent Fee simple arise out of the first Fee as hath been shewn Thus it is agreed to be by all sides in the Case of an Inheritance but now say they a Lease for Years which is a Chattel will not bear a contingent Limitation in regard of the poverty and meanness of a Chattel Estate Now as to this point the difference between a Chattel and an Inheritance is a difference only in Words but not in substance nor in Reason or the Nature of the thing for the owner of a Lease has as absolute a power over his Lease as he that hath an Inheritance has over that And therefore where no perpetuity is introduced nor any inconveniency doth appear there no Rule of Law is broken The Reasons that do support the springing Trust of a Term as well as the springing use of an Inheritance are these 1. Because it hath hapned sometimes and doth frequently that Men have no Estates at all but what consist in Leases for Years Now it were not only very severe but under favour very absurd to say that he who has no other Estate but what consists in Leases for Years shall be incapable to provide for the Contingencies of his own Family tho' these are directly within his view and immediate prospect And yet if that be the Rule so it must be for I will put the Case A Man that hath no other Estate but Leases for Years Chattels real treats for the Marriage of his Son and thereupon it comes to this agreement These Leases shall be setled as a Joynture for the Wife and provision for the Children says he I am content but how shall it be done Why thus You shall assign all these Terms to John a Styles in Trust for your self and your Executors if the marriage take no effect But then if it takes effect to your Son while he lives to his Wife after while she lives with Remainders over I would have any one tell me whether this were a void limitation upon a Marriage settlement or if it be what a strange absurdity is it that a Man shall settle it if the Marriage take no effect and shall not settle it if the Marriage happen 2. Suppose the Estate had been limited to Henry Howard and the Heirs Males of his Body till the death of Thomas without Issue then to Charles there it had been a void limitation to Charles if then the addition of those words If Thomas dye without Issue in the life of Henry c. have not mended the matter then all that addition of Words goes for nothing which it is unreasonable and absurd to think it should 3. Another thing these is which I take to be unanswerable and I gather it from what fell from my Lord Chief Justice Pemberton and when I can answer that Case I shall be able to answer my self very much for that which I am doing Suppose the Provisoe had been thus penned And if Thomas die without Issue Male living Henry so that the Earldom of Arundel descend upon Henry then the Term of 200 Years limited to him and his Issue shall utterly cease and determine but then a new Term of 200 Years shall arise and be limited to the same Trustees for the Benefit of Charles in Tail. This he thinks might have been well enough and attained the end and intention of the Family because then this would not be a Remainder in Tail upon a Tail but a new Term created Pray let us so resolve Cases here that they may stand with the reason of Mankind when they are debated abroad Shall that be reason here that is not reason in any part of the World besides I would fain know the difference why I may not raise a new springing Trust upon the same Term as well as a new springing Term upon the same Trust that is such a chicanery of Law as will be laught at all over the Christian World. 4. Another Reason I go on is this That the meanness of the consideration of a Term for years and of a Chattel Interest is not to be regarded for whereas this will be no reason any where else so I shall shew you that this Reason as to the Remainder of a Chattel Interest is a Reason that has been exploded out of Westminster-Hall There was a time indeed that this Reason did so far prevail that all the Judges in the time of my Lord Chancellor Rich did 6 Edvardi 6 deliver their Opinions That if a Term for Years be devised to one provided Dyer fol. 74. that if the Devisee die living J. S. then to go to J. S. that remainder to J. S. is absolutely void because such a Chattel Interest of a Term for Years is less than a Term for Life and the Law will endure no limitation over Now this being a Reason against Sense and Nature the World was not long governed by it but in 10 Eliz. in Dyer they began to hold Dyer f. 277 the Remainder was good by Devisee and so 15 Eliz. seems too and 19 Eliz. it was by the Judges held to be a good Remainder and that was the first time that an executory Remainder Dyer f. 328 Dyer f. 358. of a Term was held to be good When the Chancery did begin to see that the Judges of the Law did govern themselves by the reason of the thing this Court followed their Opinion the better to fix them in it they allowed of Bills by the remainder Man to compel the Devisee of the particular Estate to put in security that he in Remainder should enjoy it according to the Limitation And for a great while so the practice stood as they thought it might well because of the Resolution of the Judges as we have shewn but after this was seen to multiply the Chancery Suits then they began to resolve that there was no need of that way but the executory Remainder Man should enjoy it and the Devisee of the particular Estate should have no power to bar it Men began to presume upon the Judges then and thought if it were good as to Remainders after Estates for Lives it would be good also as to Remainders upon Estates Tail That the Judges would not endure and that is so fixed a Resolution that no Court of Law or Equity ever attempted to break in the World. Now then come we to this Case and if so be where it does not tend to a perpetuity a Chattel Interest will bear a Remainder over upon the same Reason it will bear a Remainder over upon a Contingency where that Contingency doth wear out within the compass of a life otherwise it is only to say it shall not because it shall not For there is no more inconvenience in the one than in the other Come we then at last
may be convinced of but truly at present I see no colour to retract it Mr. Serj. M. We pray then my Lord that we may have this right done for us who are for Mr. Howard the Plaintiff that they on the other side will let us know what particular points we must go upon for if they come at large we may not perhaps be so well provided to answer them Lord Chancellor I suppose they can say nothing to any point but that which is the main point in the Case the limitation of the remainder of a springing Trust after the Entail of a Term that is to determine upon a contingency that expired in the time of a Life a point which was never argued for Mr. Howard at the Bar nor stirred by the Counsel Mr. Serj. M. I hope we for Mr. Howard shall be heard to justify your Lordships Opinion Lord Chancellor What hath been said here at the Bench on both sides has been taken in Short-hand and made publick I know the Counsel on both sides hath seen it or will see and look into it well and if they can give me any reasonable satisfaction that I am in the wrong I shall easily recede from it But upon any thing yet offered I am of the same mind I was As to the Learned Judges that assisted me at the hearing the Decree is mine and the Oath that Decree is made upon is mine theirs is but Learned Advice and Opinion And therefore if they can satisfy my Conscience that they are in the right and I not well and good if not I must abide by that Decree I have made according to my Conscience And I will repeat this to you I go upon these Heads for my Opinion and I would be glad any body would answer them I say it is against natural Justice to say that a Man who hath no Estate but what consists in Terms shall be disabled from settling his Estate so as to provide for the contingencies in his Family that are in immediate prospect I say it is a common Case A Man that is less for Years assigns his Term in Trust for himself until such a Marriage take effect and after to himself for Life to his Wife for Life with remainder in Tail to his Children Is that springing Trust upon the contingency of the Marriage good or not If it be not good then what will become of a great many Marriage settlements If it be good then why not in this Case as well as that And I would fain know what difference there is between the Case as it is at the Bar and if it had been limited thus If my Lord Arundel had said that if Thomas Die without Issue Living Henry then the Term for 200 Years in Tail should cease and a new Term should arise upon the same Trust for Charles that it seems had been well enough is there any sense in the World that can lead a reasonable Man to conclude why there should not be a new springing Term upon the same Trust I cannot see any reason to run this Case down upon the single authority of Child and Baylie's Case which was such a resolution as never had its like before nor since but contradicted by several resolutions as have been cited particularly Wood and Saunders Case in this Court in my Lord Bridgmans time These are the grounds my present apprehensions go upon but I will hear Mr. Keck if it may be in any reasonable time and give the respect to the Duke of Norfolk that he shall not be surprized tho' withall I must do Mr. Howard the Justice that he be not eternally delaid Then the Day sevennight was appointed but upon the continuance of Mr. Kecks illness it was put peremptorily for Judgment on the first Saturday in the next Term. De Termino Trin. Anno Regis Car. II. 34 in Cancell Howard vers le Duc de Norfolk Sabbati 17 Junii Anno Dom. 1652. MY Lord we have nothing to do in that Mr. Serj. M. Cause but to pray your Judgment Mr. S. G. My Lord we were in great hopes to have had other Assistances to day but it seems we are disappointed of them That which I shall humbly offer is but short We are by your Lordships favour permitted now to offer something if we can to answer the objections which your Lordship made and which were the ground of your Opinion We did apprehend them to be these that Child and Baylie's Case was not the same with this Case and that the Case of Wood and Saunders is the last resolution of this Nature and will rule this We do my Lord humbly with submission offer these Reasons why the first Case is the same with this and the other difference from it Child and Baylie's Case my Lord tho' it doth differ in some Circumstances yet it differs in no one that doth immediately concern the Limitation For the Circumstances wherein they Differ was the Length of the Term being almost Expired the Conveyances over to several Purchasers and at the end of the Term the resolution taken But tho' it differs in these Circumstances yet these have no influence upon the Limitation or the Construction of Law upon the Limitation Now the Limitation is the same there as it is here for there it is to one for Life and to his Son during the whole Term and if he die without Issue during the Life of his Father and Mother then the remainder over this remainder was adjudged void This is the same Case with ours for in the Case the first remainder actually vested in William the Son for it was to him and his Assigns during the whole Term and if he die without Issue Living Father and Mother then over This remainder I say was adjudged void he was actually seized of the whole Interest which being vested in him could not be devested upon the contingent Limitations over upon his death without Issue living Father and Mother It is the same in our Case the Duke of Norfolk has the Interest of this Estate by the Limitation in Tail actually vested in him and then it cannot be devested by the rule of Child and Baylie's Case upon the Contingency of Thomas's dying without Issue in the Life of Henry which is during the Life of the now Duke of Norfolk And in this respect the Case of Wood and Saunders is not the same It is a Limitation to the Father and Mother for Life and for 60 years if they so long live then to John the Son if Living at the time of the Death of Father and Mother the whole Term. My Lord this was not a vesting the Estate in John the Son but a Contingent Limitation that he should take or not If he were Living at the time of the Death of Father and Mother then he should take If not he should not take There was no Interest vested in him till the Contingency hapned and so the Limitations will be different And that
the Son but hath but a small Estate to give him The Elder Brother he has a Term for Years and has a mind to provide for the Son of his Younger Brother and his intended Wife and he limits the Trust of his Term thus to the use of himself and his Executors till the Marriage be had but if he die or provided he die before the Marriage had without Issue living his Younger Brother the Father of him that is to be Married then to the use of that Son and so on We do make a great doubt whether the Limitation of the Trust of the Term there would be good or not upon the difference of Child and Baylies Case that has been so often mentioned in this Cause and was so solemnly resolved The resolution of which Case and that also of Wood and Saunders we submit to your Lordships consideration As for the intention of the Parties in this settlement we cannot but say it was intended as a provision that when the Bulk of the Estate and the Honour came to the Duke his Younger Brothers should have an increase of their Portions But it is as plain the intent does fail as to all the other Younger Children because the construction of Law will not support it So that the intent without the Rule of Law to maintain it will signify nothing Mr. H. If your Lordship will please to give me leave I think I may offer something that has not yet been observed We do not trouble your Lordship or our selves out of a presumption that we shall so far prevail as to alter the Opinion your Lordship has delivered but truly my design is to offer some reasons why I hope your Lordship will be pleas'd to take some further consideration of the matter Not but that I know your Lordship did very seriously deliberate upon it before you delivered your Opinion and you have been pleased to tell us the reasons you went upon and they were two First upon the Case of Wood and Saunders in this Court And Secondly upon the natural Reason and Justice that a Man that has no other Estate but Terms for Years should have a power to settle those Terms so as to provide for the Contingencies of his Family That a settlement of a Term upon Trustees to himself till the Marriage take effect and then over shall be good this might be resembled to Pell and Browns Case and so come within the same reason Now my Lord with submission we have this to offer This Trust of this Term in our Case was first to attend the Inheritance and that was an Estate Tail limited but then there is a Contingency added to this Trust to this Trust of the Term that if Thomas die without Issue living Henry then to Charles and as it hath been said already it is very plain this Entail of the Term did actually vest Then the single first Question is whether upon the Contingency hapning the death of Duke Thomas without Issue it shall devest and a springing Trust arise to the now Plaintiff Mr. Charles Howard It is said there was a just care taken for him that was a Younger Son so there was but a like care was taken for the other five Bernard c. as well as for him Now then the Case lies upon this doubt with submission to your Lordship whether this can enure by way of a springing Trust by a new Creation We think that cannot be for here being once an Estate Tail limited in a Term that was to attend an Estate Tail of the Inheritance the Remainder over must be void in the very Creation My Lord I have observed ever since I have had the honor to practise at this Bar and very many particular instances might be given that when the Judges have been upon the Cases called to advise here they would not go beyond nor think fit that the Court would not go beyond nor think fit that this Court should beyond the Resolution in Mannings Case And they have often said if that Case were now to be adjudged it would receive another kind of Resolution The Judges gave that Resolution by way of Executory devise and now I think since that there have been more Suits in this Court of this Nature since the King's Restauration than were in forty Years before For cunning People will be always finding out Perpetuities and are fond of Limitations tending to Perpetuities not only in Inheritance but in Terms for Years After Mannings Case the Conveyancers did contrive these Trusts of Terms for Years to go beyond that Case For they seemed to argue thus That being good by way of Executory devise then we will declare a Trust and that the Law has nothing to do with it is a Creature of Equity and Governably by Equity And I have seen a Conveyance of this Nature made by my Lord of Leicester to Marryot and Western drawn 1658. Where there was the Trust of a Term limited over after an Estate Tail but that was never insisted upon to be good all the Cases being otherwise If then it be not good by way of Executory devise it cannot be good by way of Limitation of the Trust of a Term. Now in this Case certainly it would not be a good Remainder by way of Executory devise For when a Term is devised to end in Tail no Man will say a Remainder of the Term can be limited over As for the Case of Wood and Saunders That My Lord I conceive had been good by way of Executory devise A Man that hath a Term deviseth it to his Wife for life and if John his Son be living at the death of his Wife then to him in Tail but if he die without Issue living Wife then to Edward that might be good For it is a condition precedent as to John and there he must survive his Father and Mother or he takes nothing but he dying before them never vested in him at all and so might well vest in Edward But in our Case it is void in the Creation because in the Case here before your Lordship it did vest and was to attend the Inheritance when the Contingency happens Can it then enure to the Plaintiff by way of springing Trust surely no. In Wood and Saunders Case it never vested in our Case it did vest But I must My Lord crave leave to say one word to another point in the Case and that is the Recovery When Contingent Remainders in Law in Cases of Settlements may be by any act in Law barred this Court I conceive will not set them up agen Now in this Case before the Contingency hapned when the Estate Tail of the Inheritance was in my Lord Duke of Norfolk and the Lease for 200 Years attendant upon that Estate Tail then doth my Lord Duke suffer a common Recovery which we apprehend hath so barred and destroyed this Term that this Court will never interpose to set it up again My Lord that which on
the Dukes behalf we now desire is that your Lordship will be pleased to take some further time to consider of it and deliver your Judgment the next Term. Mr. Serj. M. My Lord I did not expect I must confess an Argument at this rate and at this time but your Lordship in great tenderness and favour hath given them leave to do it but after all under favour what they say is a great mistake of the Case If they had observed what was said and truly applied it they would have answered themselves What interpretation in such a Case shall be made or not be made is meerly matter of Equity which upon the circumstances of every Case is governable by the Circumstances I would not go after their Example to argue to support as they have done to overturn the Opinion of the Court that has been delivered But I would offer this to your Lordship there is a great mistake in calling this a Remainder it is no such thing as a Remainder It is indeed a springing Trust upon a Contingency But pray my Lord consider how it stands here in Equity before your Lordship Here is a noble and great Family the Heir of it under the Visitation of the Hand of God which no one could remove but God alone here are a great and numerous Issue to provide for that provision which is made according to the Rules of Nature and Justice and it being necessary to be done no Man could contrive it better than this settlement My Lord they frighten us with the word Perpetuity It is true a Perpetuity cannot be maintained that is an Inheritance not to be aliened or barred or that can never end But here is but the name of a Perpetuity and certainly that must be a strange and monstrous Perpetuity that must determine within the short space of a Life A Perpetuity is an Estate that can never be barred And Littleton hath a Rule that there is no Estate but can be barred if all the Persons concerned in it joyn But it is under favour a contradiction and a great one to call this a Perpetuity a monstrous one I say it is where any Man can see the end of it and whereas to the circumstances of the Case the Family could not otherwise be well provided for And whereas Perpetuities are abhorred it is upon the inconvenience which hinders other provisions in case of necessity and it were indeed an inconvenience that every Family should have the misfortunes that were in this and not be able to provide some sort of remedy for them Some cases my Lord have been put by the other side now which under favour are nothing to the purpose and would need no other answer than they give themselves But truly I think it is not fit for the advantage of the publick that after a Case has been so solemnly argued the Counsel should dispute the Opinion of the Court. My Lord I would desire to say a word in answer to some things that have been urged As to the Case that Mr. H ch s put I think it had been good by way of Executory devise To one and his Heirs Males till such an one returns from Rome or the like had been good especially where the determination Depends but upon the expiring of a short Life But all this is but Petitio principii the same thing over and over As for Child and Baylies Case there are several things that differ it from ours There it hath a semblance of our Case of one dying without Issue but it is there upon a Life and not within a Life as ours doth And in our Case my Lord this Limitation to Henry is a Limitation of a Term attendant upon an Inheritance and then it is plainly as if the Limitation of a Freehold Estate were to one and the Heirs of his Body and if such an accident happens the Estate to cease and be to another for a 100 Years And it is in Henry attendant upon the Inheritance it should not if Henry had died gone to his Exeecutor but to his Heir Then as to Charles here is a condition that determines the whole Trust as to Henry and there it begins to be first a Limitation of a Term in gross He that creates a Term attendant upon an Inheritance may sever it if he will and if he may sever it may he not limit it upon a Contingency that upon such a Contingency it shall be severed All conditions are either precedent or subsequent Precedent to create a springing Trust and Subsequent to destroy the former Estate In Wood and Saunders Case John did not take but upon the precedent Condition but Edward took it upon the subsequent Condition In our Case this condition is both as to the destroying of the Trust to Henry it is a subsequent Condition but as to the creating a new Trust to Charles it is a precedent Condition My Lord I must not undertake to argue this Case but only to say a little to what was said on the other side we hope it being upon so short a Contingency which has now hapned the Limitation of this Term to the Plaintiff is good and we pray your Judgment for him THE Lord Chancellor's SECOND ARGUMENT Lord Chancellor I Am not sorry for the Liberty that was taken at the Bar to argue this over again because I desired it should be so for in truth I am not in love with my own Opinion and I have not taken all this time to consider of it but with very great willingness to change it if it were possibe I have as fair and as justifiable an opportunity to follow my own Inclinations if it be lawful for a Judge to say he has any as I could desire for I cannot concur with the three Chief Judges and make a Decree that would be unexceptionable But it is my Decree I must be saved by my own Faith and must not Decree against my own Conscience and Reason It will be good for the satisfaction of the publick in this Case to take notice how far the Court is agreed in this Case and then see where they differ and upon what grounds they differ and whether any thing that hath been said be a ground for the changing this Opinion The Court agreed thus far That in this Case it is all one the Limitation of the Trust of a Term or the Limitation of the Estate of a Term all depends upon one and the same Reason The Court is likewise agreed which I should have said first to dispatch it out of the Case that it may not trouble the Case at all that the Surrender of Marryot to the Duke of Norfolk and the common Recovery suffered by the Duke are of no use at all in this Case For if this Limitation to Charles be good then is that Surrender and the Recovery a breach of Trust and ought to be set aside in Equity so all the Judges that assisted at the hearing of this Cause
agreed If the Limitation be not good then there was no need at all of a Surrender to bar it nor of the common Recovery to extinguish it But then we come to consider the Limitation and there it agreed all along in point of Law That the measures of the Limitations of the Trust of a Term and the measures of the Limitations of the Estate of a Term are all one and uniform here and in other Cases and there is no difference at Chancery or at Common Law between the Rules of the one and the Rules of the other what is good in one Case is good in the other And therefore in this Case the Court is agreed too that the Limitations made in this Settlement to Edward c. are all void for they tend directly and plainly to Perpetuities for they are Limitations of Remainders of a Term in gross after an Estate Tail in that Term which commenceth to be a Term in gross when the Contingency for Charles happens Thus far there is no difference of Opinion but whether the Limitation to Charles if Thomas die without Issue living Henry whereby the Honour of the Earldom of Arundel descends upon Henry I say whether that be void too is the great Question of this Case wherein we differ in our Opinions It is said that is void too and yet sever it from the Authority of Child and Baylie's Case which I will speak to by and by I would be glad to see some tolerable Reason given why it should be so for I agree it is a Question in Law here upon a Trust as it would be elsewhere upon an Estate and so the Questions here are both Questions of Law and Equity It was well said and well allowed by all the Judges when they did allow the Remainders of Terms after Estates Tail in those Terms to be void I shall not devise a Term to a Man in Tail with Remainders over the Judges have admirably well resolved in it and the Law is setled and Matthew Mannings Case did not stretch so far because this would tend to a Perpetuity Now on the other side I would fain know when there is a Case before the Court where the Limitation doth not tend to a Perpetuity nor introduceth any visible Inconvenience what should hinder that from being good For tho' if there be a tendency to a Perpetuity or a visible Inconvenience that shall be void for that reason yet the bare Limitation of the Remainder after an Estate Tail which doth not tend to a Perpetuity that is not void Why because it is not I dare not say so see then the Reasons why it is so The Reasons that I lie under the load of and cannot shake off are these The Law doth in many Cases allow of a future Contingent Estate to be limited where it will not allow a present Remainder to be limited and that Rule well understood goeth through the whole Case How do you make that out Thus If a Man have an Estate limited to him his Heirs and Assigns for ever which is a Fee-simple but if he die without Issue living J. S. or in such a short time then to J. D. tho' it be impossible to limit a Remainder of a Fee upon a Fee yet it is not impossible to limit a Contingent Fee upon a Fee. And they that speak against this Rule do endeavour as much as they can to set aside the Resolution of Pells and Browns Case which under favour was not the first Case that was so Resolved for as I said before when I first delivered my Opinion it was resolved to be a good Limitation 19 Eliz. in the Case of Hinde and Lyon 3 Leonard 64. which by the way is the best Book of Reports of the later ones that hath come out without Authority If that be so then where a present Remainder will not be allowed a Contingent one will. If a Lease for years come to be limited in Tail the Law allows not a present Remainder to be limited thereupon yet it will allow a future Estate arising upon a Contingency only and that to wear out in a short time But what time and where are the bounds of that Contingency You may limit it seems upon a Contingency to happen in a life what if it be limited if such a one die without Issue within 21 Years or 100 Years or while Westminster-hall stands Where will you stop if you do not stop here I will tell you where I will stop I will stop where-ever any visible Inconveniece doth appear for the just bounds of a Fee-simple upon a Fee-simple are not yet determined but the first Inconvenience that ariseth upon it will regulate that First of all then I would fain have any one answer me where there is no Inconvenience in this Settlement no Tendency to a Perpetuity in this Limitation and no Rule of Law broken by the Conveyance what should make this void And no Man can say that it doth break any Rule of Law unless there be a Tendency to a Perpetuity or a palpable Inconvenience Oh yes Terms are meer Chattels and are not in consideration of Law so great as Freeholds or Inheritances These are words and but words there is not any real difference at all but the Reason of Mankind will laugh at it shall not a Man have as much power over his Lease as he has over his Inheritance If he have not he shall be disabled to provide for the Contingencies of his own Family that are within his view prospect because it is but a Lease for years and not an Inheritance or a Freehold There is that absurdity in it which is to me insuperable nor is the Case that was put answered in any degree A Man that hath no Estate but what consists in a Lease for years being to Marry his Son setled this Lease thus In Trust for himself in Tail till the Marriage take effect and if the Marriage take effect while he lives then in Trust for the Married couple is this future Limitation to the married couple good or bad If any Man say it is void he overthrows I know not how many Marriage-settlements If he say it be good why is it not a future Estate in this Case as good as in that when there is no tendency to a Perpetuity no visible Inconvenience All Men are agreed and my Lord Chief Justice told us particularly how that there is a way in which it might be done only they do not like this way and I desire no better argument in the World to maintain my Opinion than that For says my Lord Chief Justice suppose it had not been said thus if Thomas die without Issue living Henry then over to Charles but thus if it happens that Thomas die without Issue in the life of Henry c. then this Term shall cease and there shall a new Term arise and be created to vest in Charles in Tail and that had been wonderful well and my