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
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
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
am of opinion it fails in point of Limitation and ought to be decreed for the Defendant The Lord Chief Justice Pemberton's Opinion I Need not trouble your Lordship with opening the Case the truth is it is in short no more than thus My Lord Duke of Norfolk's Father the Earl of Arundel having created an Estate for 200 years and setled the Inheritance by one Deed Intail to himself for life and after to his Lady for life and then to his Son and the Heirs Males of his body and for default of such Issue to the other Son Charles and the Heirs Males of his body with several Remainders over Then by another Deed he does declare the Trusts of this term of 200 years which being to Henry and the Heirs Males of his body till my Lord Maltravers die without Issue Male and the Earldom descend to my now Lord Duke and after the determination of that Estate if he shall die without Issue Male then to come to Charles and the Heirs Males of his body whether this be a good Remainder to Charles is the Question For as to any thing of the Recovery or the Assignment I shall put it quite out of the Case and do not think it will have any influence upon the Case as it lies before us And indeed I do first think that the Earl of Arundel did certainly design that if my Lord Maltravers should die without Issue Male whereby the Honour of the Family should come to my Lord Duke that now is Charles should have this Estate and his intentions are manifest by creating this Term which could be of no other use but to carry over this Estate to Charles a younger Son upon the elder Sons dying without Issue And I do think truly that this was but a reasonable Intention of the Father for there being to come with the Earldom a great Estate that would so well support it it was reason and the younger Sons might expect it that their Fortunes might be somewhat advanced by their Father in case it should so happen It was a reasonable expectation in them and truly I think it was the plain intention of the Earl. And there is no great question but it might have been made good and effectual by the limitation of two Terms For if one Term had been limited to determine upon the death of Thomas without Issue and that to be for the now Duke of Norfolk and another Term then to commence and go over to Charles that would certainly have been good and carried the Estate to Charles upon that Contingency but as this Case now is I do think that this way that is now taken is not a good nor a right way for I take this Limitation to Charles to be void in Law. And as to that I know there is a famous difference of limiting Terms that are in Gross and Terms that attend the Inheritance As to Terms that are in Gross I think it will be granted because it hath been setled so often they are not capable of limitation to one after the death of one without Issue for so are all the Cases that have been cited I think further it is as clear that upon Terms attendant upon an Inheritance there may be such a Limitation to wit that a Term that waits upon an Inheritance after the death of one without Issue may go over to another But then it is capable of such a Limitation in that Case with this restriction that is if the Inheritance be so limited for though it be attendant ever so much upon the Inheritance yet that attendance cannot make it capable of another Limitation than that Inheritance is capable of For if I have an Estate in Fee-simple and have the Trust of a term attendant upon that and I will let the Estate of Inheritance descend to my Son I cannot in this case though the Term be attendant limit it that if my Son die without Issue that Term shall go over it is not capable of any Forreign Limitation whatsoever for as to that it is a Term in Gross it hath not the quality of a Term attendant upon the Inheritance at all for first it would fail of an Inheritance and a Free-hold to support it and further than a Term can be supported with a like Estate of Inheritance It will fail to be a Term attendant upon the Inheritance Now here the Estate of Inheritance is limited to Henry and the Heirs Males of his body with Remainders to Charles and the Heirs Males of his body Now thus the Term is capable of a Limitation to Henry and the Heirs Males of his body And for want of such Issue to Charles and the Heirs Males of his body because it hath an Inheritance on which it depends to go along with it and support it But to take this out of its right Course and Channel and put another Limitation upon it That upon the dying of Thomas without Issue whereby the Earldom shall descend this shall go over to Charles alas it cannot be because it hath no Free-hold or Inheritance to support it And then besides it could not have that reason that the Law intends for its permitting such Limitations to Terms attending the Inheritance for I take it the reason why Terms are admitted to be attendant upon the Inheritance and to be capable of Limitations to go along with the Inheritance is their relation they have to the Inheritance and because it is for the benefit of the Inheritance and that I conceive was the onely reason that at first guided these Judgements of the Court of Chancery that these Terms should be admitted to wait upon the Inheritance to protect it when Mortgages were made in former times by Feoffments upon condition of payment of money we hear of none of these Terms But in the latter part of Queen Elizabeth's time and since the way of limiting Terms in Mortgages came up in use and then upon the buying of Inheritances came in the Trust of these terms and they that purchased were advised to keep those Terms on foot to protect their purchased Inheritance I must look upon this indeed as a new Case of Novel invention for in truth I think in truth it is Prima Impressionis and none of the former Cases have been exactly the same For this Term here does partake somewhat of a Term in Gross and somewhat of a Term attendant upon an Inheritance and if there should be such a Limitation admitted such a forreign Limitation as this is I call it Forreign because it is not that which goes along with the Inheritance If that be allowed we know not what inventions may grow upon this for I know mens Brains are fruitful in inventions as we may see in Matthew Manning's Case It was not foreseen nor thought when that Judgement was given what would be the Consequence when once there was an Allowance of the Limitation of a Term after the death of a person presently it was
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
is the Ground that is drawn up in the Decretal Order of the Cause because this was a Contingent Limitation to John and that never hapning it is all one as if it had never been limited and amounts putting the Contingent Limitation which never hapned out of the Case to no more than a Limitation to the Father and Mother for Life the remainder over which is well enough This is that I have to offer and I humbly submit it to your Lordship Mr. Serj. M. And so we do and pray your Judgment Mr. R. I see they are pressing for your Lordships Judgment and I know not whether it will become me to interpose with any thing Lord Chancellor Say say for this is a Cause that deserves patience Mr. R. No Man my Lord can have any great encouragement to add any thing after all the Arguments that have been made in this Cause or can hope to offer that which will be very material and new but I desire to have leave to say this in short My Lord there be two Deeds by which this settlement is made as a provision for the second Son of this Family and the younger Children and therein it doth perhaps appear that if the Bulk of the Estate and the Honour should come to the second Son then the settlement of this part that is made upon the second Son was intended to come to the now Plaintiff and the younger Children This is the Intention of the two Deeds By the first Deed the Estate of Freehold and Inheritance is limited in Tail. By the second Deed the Trust is declared of the Term for 200 Years that is limited to Henry and so over And therein it differs from the Case of Wood and Saunders For the Trust of the Term doth vest in Henry till the Contingency happen but in Wood and Saunders Case there it is limited to the Father and Mother for 60 Years if they lived so long then to John and his Heirs Males in Case he survive his Father and Mother and the Trust to be assigned to him accordingly and if he die without Issue in the Life of the Father and Mother then to Edward his Brother No Man can say that ever any thing here did vest in John For it was but limited to him after his Father and Mother's life in case he survived them but it never vested in him and so it differs from this Case For here the Trust of the Term did vest in the Duke of Norfolk till the Contingency did happen And as that is the difference between the two Cases and I do apprehend it is a difference with great reason from Wood and Saunders Case so that which I infer from it is this That where the Trust of a Term is limited to a Man and his Issue and his Heirs Males and that vested in him if he die without Issue or which is much a stronger Case tho' the Contingency be restrained within the compass of a life or of a certain time that is to wear out in a reasonable distance yet coming after a Limitation in Tail cannot carry the remainder over For if you once admit it during one life you must admit it during twenty lives for the reason is the same as to twenty as it is to one if they be all in Being and perhaps the reason will be the same as to twenty lives all in Being and for the life of one person more Then if the Trust of a Term where it is once vested in Tail can never be well limited over tho' restrained within the Contingent distance of a reasonable time This Limitation to the Plaintiff can never be good My Lord I crave leave to offer your Lordship one Case or two suppose that a Term for Years or the Limitation of the Trust of a Term for Years for I think there is the same construction made of both be limited to J. S. and the Issue of his Body and if J. S. die without Issue within 100 Years for the purpose or within twenty Years then to go over to J. N. that cannot be apprehended to be good but void for there is no difference between 1000 or 100 or 20 Years yet 20 Years is but a reasonable time and not more in prospect than one or ten lives If a Man limit the Trust of a Term or a Term it self to J. S. and the Issue of his Body and if he die without Issue before 21. then to go over to J. N. This a reasonable distance of time and yet I believe this will not be allowed to be good and well limited over And the reason is where once a Term is limited to a Man and his Issue this in a reasonable construction of Law carries the whole Term for it was a good while before they gained the point of remainders after lives and if after it be said if he die without Issue within a 100 Years or before 21. that restriction will not help it as we think Then where is the reason or sense that it should be otherwise if he die without Issue in the life of another person Truly my Lord it is very hard to find out a true difference between the Cases where the Restriction is for the life of a certain person and where it is upon a certain number of Years My Lord I would put this Case upon Wood and Saunders Case which is the authority that is so much pressed upon us Suppose that Case had been thus to the Father for 60 Years if he so long live to the Mother for 60 Years if she so long live and then instead of that Limitation to John in Case he survived his Father and Mother suppose it had been to the first Son of the Father and Mother and the Heirs of his Body and if such first Son die without Issue in the life-time of his Father and Mother then it should go over to another person Had it then been good surely no. What is the difference Why this it being to John in case he survived his Father and Mother nothing vested But if it had been to the first Son and the Heirs of his Body and they have a Son there it differs for it is actually vested in him And there the Limitation over to a stranger would not be good even admitting the Case of Wood and Saunders to be uncontroulable Another Objection your Lordship made was about the necessary Limitations of the Trusts of Terms by Termers upon Marriage Settlements to a Mans self till the Marriage take effect and then to such and such uses and the Objection is why should it not be as good a Limitation of the Trust of a Term or of a Term it self as well as of an Inheritance That will not reach our Case therefore I need not say any thing to it whether it would be so or no. But suppose this Case there be two Brothers the Eldest hath no Children the younger Brother hath a Son and is a going to Marry
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