Selected quad for the lemma: lord_n
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A36820
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The Duke of Norfolk's case, or, The doctrine of perpetuities fully set forth and explain'd
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1688
(1688)
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Wing D2513; ESTC R17683
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59,123
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72
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a Fee upon a Fee is not yet plainly determined but it will be soon found out if men shall set their Wits on work to contrive by Contingencies to do that which the Law has so long laboured against the thing will make it self Evident where it is Inconvenient and God forbid but that Mischief should be obviated and prevented I have done with the legal Reasons of the Case it is fit for us here a little to observe the Equitable Reasons of it and I think this Deed is good both in Law and Equity And the Equity in this Case is much stronger and ought to sway a man very much to incline to the making good this Settlement if he can For 1. It was prudence in the Earl to take care that when the Honour descended upon Henry a little better support should be given to Charles who was the next Man and trode upon the heels of the Inheritance 2. Though it was always uncertain whether Thomas would die without Issue living Henry yet it was morally certain that he would die without Issue and so the Estate and Honour come to the younger Son for it was with a careful circumspection always provided that he should not Marry till he should recover himself into such estate of body and mind as might suit with the honour and dignity of the Family 3. It is a very hard thing for a Son to tell his Father that the provision he has made for his younger Brothers is void in Law but it is much harder for him to tell him so in Chancery And if such a provision be void it had need be void with a vengance it had need be so clearly void that it ought to be a prodigie if it be not submitted to Now where there is no perpetuity introduced no cloud hanging over the Estate but during a Life which is a common possibility where there is no inconvenience in the Earth and where the Authorities of this Court concur to make it good to say all is void and to say it here I declare it I know not how to do it To run so Counter to the Judgment of that great man my Lord Keeper Bridgman who both advised this settlement and when he was upon his Oath in this place decreed it good I confess his Authority is too hard for me to resist though I am assisted by such learned and able Judges and will pay as great a Deference to their Opinions as any man in the World shall If then this shall not be void there is no need for the Merger by the Assignment or the Recovery to be considered in the Case For if so be this be a good limitation of the Trust and they who had notice of it will palpably break it they are bound by the Rules of Equity to make it good by making some Reparation Nay which is more if the Heir enter upon the Estate to defeat the Trust that very Estate doth remain in Equity infected with the Trust which was the Case of my Lord of Thomond so also was the Resolution in Jackson and Jackson's Case So that to me the Right appears clear and the Remedy seems not to be difficult Therefore my present thoughts are that the Trust of this Term was well limited to Charles who ought to have the Trust of the whole Term Decreed to him and an account of the mean profits for the time by past and a recompence made to him from the Duke and Marryot for the time to come But I do not pay so little Reverence to the Company I am in as to run down their solemn Arguments and Opinions upon my present Sentiments and therefore I do suspend the Inrolment of any Decree in this Case as yet but I will give my self some time to consider before I take any final Resolution seeing the Lords the Judges do differ from me in their Opinions De Termino Pasch anno 34. Car. II. Ro. In Cancell Sabbati 13 die Maij. Howard Versus Le Duc de Norfolk THis Day was appointed for final Judgment in this cause and it being called Mr. Serjeant M. moved My Lord we depend upon your Lordship in that cause for your Opinion Mr. S. G. My Lord in the Case of Howard against the Duke of Norfolk I do not know whether I may have the Liberty to move this that I am going to offer It stands now in the Paper now for your Lordships Judgment and therefore I speak this that I now offer with great submission if your Lordship will please to hear it If you will please to allow my Lord of Arundel's Counsel the liberty of offering any thing further in the Cause Possibly it will not become them to offer any thing that hath been said but if they may be permitted to argue some new matter if they can find any Therefore we that are for my Lord of Arundel desire the liberty of having some little time till Mr. Keck who is of my Lords Counsel but at present indisposed and has not yet been heard can come which we hope will not be long We hope it will be no prejudice to this Cause which has had so long an agitation to stay a few days longer A Weeks time sure will break no squares Lord Chancellor I did appoint the first Tuesday in the Term to deliver my Opinion in this Case for I desire to rid my hands of it But Mr. Keck who was then at the Bar did pray that he might argue it once more for the Defendant and my Lord Duke of Norfolk having never been heard by Mr. Keck I was willing to hear him For it was a Cause of moment and difference of Opinions and there are so many short-hand Writers that nothing can pass from us here but it is presently made publick and tho' a Man doth not speak in Print yet what he says shall be immediately put in Print therefore because Mr. Keck desired it and to justify my own Opinion tho' I had appointed the first Tuesday in the Term yet I gave till this day It is but reason Mr. Keck should be heard who has not yet argued it and if any Man can convince me I am in an error or make it appear to me that I am mistaken in the Law in the Opinion I have given which as yet I see no cause in the World to change God forbid but I should hear them but on the other side this cause must not everlastingly be put off because my Lord Dukes Counsel are not here Therefore I will give you a Weeks time further but upon this Day sevennight come or not come I will give my Judgment in the Cause Mr. Serj. M. If your Lordship pleases to put it upon the other side unless they shew cause then the Opinion your Lordship has given to stand Lord Chancellor If my Opinion which is under the prejudice of being contrary to that of the three Chief Judges can be refuted I am not ashamed to retract any error I
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