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
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
for I pretend not to be Infallible but that is a thing I cannot help Upon the whole matter I am under a Constraint and under an Obligation which I cannot resist A Man behaves himself very ill in such a place as this that he needs to make Apologies for what he does I will not do it I must Decree for the Plaintiff in this Case and my Decree is this That the Plaintiff shall enjoy this Barony for the residue of the Term of two hundred years the Defendant shall make him a Conveyance accordingly because he extinguished the Trust in the other and the Term contrary to both Law and Reason by the Merger and Surrender and common Recovery And that the Defendants do account with the Plaintiff for the profits of the premisses by them or any of them received since the Death of the said Duke Thomas and which they or any of them might have received without wilful default and that it be referred to Sir Lacon William Child Knight one of the Masters of this Court to take the said Accompt and to make unto the Defendants all just allowances and what the said Master shall certifie due the said Defendants are to pay unto the Plaintiffs according to the Masters Report herein to be made And that the Defendants shall forthwith deliver the possession of the Premisses to the Plaintiff and that the Plaintiff shall hold and enjoy the said Barony of Greystock with the Lands and Tenements thereto belonging for the residue of the said Term of two hundred years against the Defendants and all claiming by from or under them And it is further Ordered and Decreed that the said Defendants do Seal and Execute such a Conveyance of the said Term to the Plaintiff as the Master shall approve of in Case the parties cannot agree the same but the Defendants are not to pay any Costs of the Suit. Die Veneris 19 Junii 1685. AFter hearing Council two several days upon the Petition and Appeal of Charles Howard Esq shewing that his Father intended a Provision for his younger Children by Deed made by advice of eminent Council and did settle the Barony of Greystocke and other Lands of the value of 500 l. per annum in Trustees in order thereunto and that after a long Suit in Chancery wherein the Petitioner was Plaintiff against his Grace the late Duke of Norfolk the Marquess of Dorchester Henry Lord Mowbray and Richard Marriott Esq Defendants the Cause coming to be heard before the Lord Chancellor Nottingham on the 17th of June in the Four and Thirtieth Year of His late Majesties Reign of Glorious Memory who after several Days hearing did declare his Opinion to be That the Petitioner had a good Title to the Barony of Greystocke and other the Lands in question and Decreed the Defendants to account to him for the Profits thereof by them received after the Death of Thomas late Duke of Norfolk which Decree was signed and enrolled and the Petitioner actually vested in the Possession of the said Mannors and Premisses and further sheweth That the Defendants the late Duke of Norfolk the Lord Mowbray now Duke of Norfolk and Richard Marriott exhibited a Bill of Review into the High Court of Chancery for reversing the said Decree to which the Petitioner put in a Plea and Demurer which being argued on the 15th of May in the Five and Thirtieth Year of the Reign of our late King Charles the Second before the Right Honourable the Lord Keeper of the Great Seal of England who after hearing Council on both sides over-ruled the said Plea and Demurrer and reverst the Decree aforesaid and ordered a Writ or Writs of Restitution to be directed to the Sheriffs of Cumberland and Westmerland to put the Plaintiffs in the Bill of Review in Possession which accordingly was done as in the Petition amongst other things is suggested and prayed a Reversal of the last Decree as also upon the Answer of the Right Noble Henry Duke of Norfolk Earl Marshal of England and Richard Marriot Esq put in thereunto And after due Consideration had of what was offered at the Bar by Council on either part thereupon IT is ordered and adjudged by the Lords Spiritual and Temporal in Parliament assembled That the said Decree made in the High Court of Chancery on the 15th of May in the Five and Thirtieth Year of the Reign of the late King Charles the Second of Glorious Memory in behalf of the late Duke of Norfolk and the now Duke of Norfolk and Richard Marriott Esq be and is hereby reversed and that the Decree made in the said Court of Chancery on the 17th of June in the Four and Thirtieth Year of His late Majesties Reign in behalf of Charles Howard Esq the now Petitioner Be and Is hereby affirmed JOHN BROWNE Cler. Parl. FINIS
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
Issue the Daughters his Executrixes against whom an Action of Debt is brought upon a Bond they plead no Assets and upon a special Verdict the Question being whether this were Assets in their hands it was adjudged it was In the report of that Case there are many expressions of the Courts unwillingness to extend these Devises and Dispositions of Terms further than the Judges had gone already The authority of this Case doth much strengthen the authority of Baily's Case because it doth thwart and oppose the Judgement in Rhetorick and Chappell's Case There was also started at the Bar in Pell and Browns Case that a Fee upon a Fee arising upon such a proximate Contingency as might happen in so short a time as a Life was a good Limitation It is very true that Case is so adjudged but I think there might be such reason of difference urged between the disposition of a Fee-Simple and of a Term for a Term may be qualified as to a man and his Heirs until a marriage take effect but the qualifying of a disposition of a Term cannot be because when once a Term is given the qualification comes too late I do think that there have been Cases in this Court where a Term has been limited to one and the Heirs Males of his body upon a Contingency to happen first with Limitations over if that Contingency do not happen that has been a good Limitation As thus if it be limited to the Wife for life and then to the eldest Son if he overlive his Mother and the Heirs Males of his body the Remainder over to a younger Son there if the eldest Son die in the life of the Mother the Limitation to the second Son may be good But if there be an instant Estate-tail created upon a Term with Remainders over though there be a Contingency as to the expectations of him in the Remainder yet there is such a total disposition of the Term as after which no Limitations of a Term can be For that Objection out of Pell and Brown's Case there is no such sure Foundation to build upon in the point of a Term because that Case it self has been controverted since that Judgement given in a Case between Jay and Jay in stiles Reports 258 and 274 Trinit 1651 fol. 258. 'T is thus A man seized in Fee devised it to one and his Heirs and if he die during the life of his Mother the Remainder to another and his Heirs There is no Opinion given but Rolls Chief Justice said a Limitation of an Inheritance after an absolute Fee-simple is not a good Limitation because this would be to make a Perpetuity which the Law will not admit but if it be upon a contingent Fee-simple it is otherwise but fol. 274 where it is spoken to again by Latch he argued that it was not a good Limitation and though he doth cite and confess Pell and Brown's Case to be adjudged quite contrary to what he argued yet he tells you that the Judges did find such Inconveniences arising upon it that the Court was divided upon a like Case and says further that within nine years after that Judgement 21 Jac. it was made a flat Query in the Serjeants Case and adds moreover that it hath been ever since disputable and cites a Case and gives you a Roll but not the Parties names Mich. 37 and 38 Eliz. C. B. Rol. 1149 wherein says the Book after solemn Arguments both at Bar and Bench it was adjudged quite contrary to Pell and Brown's Case but admit that Case to be good Law where will you stop if you admit the limitation of a Term after an Estate-tail where shall it end for if after one it may as well be after two and if after two then as well after twenty for it may be said if he die within 20 years without Issue and so if within 100 and there will be no end and so a Perpetuity will follow It was said at the Bar it will be hard to frustrate the intention of the Parties To that I answer Intention of Parties not according to Law are not to be regarded It was the Intention in Child and Baily's Case that the younger Son should have it and so in Burgesses Case it was the Intention the Daughter should have it and so in Gibsons and Sommers's Case it was intended for the Daughters yet all these Intentions were rejected and therefore as to that it is not at all to weigh any thing in the Case It has also been objected but then here is a contingency that has actually hapned upon Thomas's death without Issue and so the Honour is come to Henry I say the hapning of the Contingency is no ground to judge The Limitation good upon it was not good if the other Limitation had stood out and that I conceive is our Case So then for that I think these expositions have gone as far already as they can for my part I cannot extend it any further and therefore I conceive in this Case the Plaintiff has no right to this Term but the Decree ought to be made for the Defendants The Argument of the Lord Chief Justice North I Shall not trouble your Lordship to repeat the Case again for it has been truly opened by my Lord Chief Baron nor shall I trouble you with any long Argument because I think there is but one point in the case and that a short one The onely point is this Whether this contingent Trust of a Term limited to Charles upon the dying of Thomas without Issue Male whereby the Honour did descend to Henry be good in point of Creation and Limitation for the other two points will not trouble the Case For as to that point of the Recovery in case this being not a good Limitation in point of Creation it will make nothing in the Case for it is gone without the Recovery In case it be good in point of Creation the Recovery will do nothing for that supposeth it to go along with the Inheritance And if this take effect then it will suffer no prejudice by the Recovery Then for the assignment of Marriot to the Duke that signifieth nothing in the Case it doth indeed shew that if your Lordship shall decree this Cause for the Plaintiff then he hath committed a breach of Trust but if for the Defendant then it is of no weight at all If the Law be for the Plaintiff then he must answer for this breach of Trust and so must the Duke for it is a surrender to a person that had notice of the Trust So that the Question is barely upon that single first Point whether it be a good Limitation upon the Contingency to Charles this which they call a springing Trust My Lord I take the Rules of this Court in cases of Trusts of Terms to be the same with Rules of Law in Devises of Terms For I conceive the Rules of Law to prevent Perpetuities are the policy of
to that which seems most to choak the Plaintiffs Title to this Term and that is the resolution in Child and Baylie's Case For it is upon that Judgment it seems all Conveyances must stand or be shaken and our Decrees made Now therefore I will take the liberty to see what that Case is and how far the Opinion of it ought to prevail in our Case 1. If Child and Baylie's Case be no more than as it is reported by Rolls part 2. fol. 129. then it is nothing to the purpose A Devise of a Term to Dorothy for life the remainder to William and if he dies without Issue to Thomas without saying in the life of Thomas and so it is within the common Rule of a Limitation of a Term in Tail with Remainder over which cannot be good But if it be as Justice Jones has reported it fol. 15 then it is as far as it can go an Authority For it is there said to be living Thomas But the Case under favour is not altogether as Mr. Justice Jones hath reported it neither for I have seen a Copy of the Record upon this account and by the way no Book of Law is so ill corrected or so ill printed as that The true Case is as it is reported by Mr. Justice Crook and with Mr. Justice Crooks Report of it doth my Lord Rolls agree Cro. Hil. 15. Jac. 459. in his abridgment Title Devise 612. There it is a Term of 76 Years is devised to Dorothy for life then to William and his Assigns all the rest of the Term provided if William die without Issue then living then to Thomas and this is in effect our present Case I agree it But that which I have to say to this Case is First It must be observed that the Resolution there did go upon several Reasons which are not to be found in this Case 1. One Reason was touched upon by my Lord Chief Baron That William having the Term to him and his Assigns there could be no Remainder over to Thomas of which Words there is no notice taken by Mr. Justice Jones 2. Dorothy the Devisee for life was Executrix and did assent and grant the Lease to William both which Reasons my Lord Rolls doth lay hold upon as material to govern the Case 3. William might have assigned his Interest and then no Remainder could take place for the Term was gone 4. He might have had Issue and that Issue might have assigned and then it had put all out of doubt 5. But the main Reason of all which makes me oppose it ariseth out of the Record and is not taken notice of in either of the Reports of Rolls or Jones or in Rolls Abridgment The Record of that Case goes farther for the Record sayes There was a farther Limitation upon the death of Thomas without Issue to go to the Daughter which was a plain affectation of a perpetuity to multiply Contingencies It farther appears by the Record that the Fathers Will was made the 10 of Eliz. Dorothy the Devisee for life held it to the 24 and then she granted and assigned the Term to William he under that Grant held it till the 31 of Eliz. and then regranted it to his Mother and dyed the Mother held it till the 1 of K. James and then she dyed the Assignees of the Mother held it till 14 Jac. and then and not till then did Thomas the younger Son set up a Title to that Estate and before that time it appears by the Record there had been six several Alienations of the Term to Purchasers for a valuable Consideration and the Term renewed for a valuable Fine paid to the Lord. And do we wonder now that after so long an acquiescence as from 10 Eliz. to 14 Jacob and after such successive Assignments and Transactions that the Judges began to lye hard upon Thomas as to his Interest in Law in the Term especially when the Reasons given in the Reports of the Case were legal Inducements to guide their Judgments of which there are none in our Case But then Secondly At last allowing this Case to be as full and direct an Authority as is possible and as they would wish that rely upon it then I say 1. The Resolution in Child and Balie's Case is a Resolution that never had any Resolution like it before nor since 2. It is a Resolution contradicted by some Resolutions and to shew that that Resolution has been contradicted there is 1. The Case of Cotton and Heath which looks very like a contrary Resolution there is a Term limited to A. for eighteen years the Remainder to B. for life the Remainder to the first Issue of B. for life this Contingent upon a Contingent was allowed to be good because it would wear out in a short time But 2. To come up more fully and closely to it and to shew you that I am bound up by the Resolutions of this Court there was a fuller and flatter Case 21 Car. 2. in July 1669 between Wood and Saunders The Trust of a long Lease is limited and declared thus To the Father for sixty years if he lived so long then to the Mother for sixty years if she lived so long then to John and his Executors if he survived his Father and Mother and if he died in their life-time having Issue then to his Issue but if he dye without Issue living the Father or Mother then the Remainder to Edward in Tail. John did die without Issue in the life-time of the Father and Mother and the question was whether Edward should take this Remainder after their death and it was Resolved by my Lord Keeper Bridgeman being assisted by Judge Twisden and Judge Rainsford that the Remainder to Edward was good for the whole Term had vested in John if he had survived Yet the Contingency never hapning and so wearing out in the compass of two Lives in being the Remainder over to Edward might well be limited upon it Thus we see that the same Opinion which Sir Orlando Bridgeman held when he was a Practizer and drew these Conveyances upon which the question now ariseth remained with him when he was the Judge in this Court and kept the Seals and by the way I think it is due to the Memory of so great a Man whenever we speak of him to mention him with great Reverence and Veneration for his Learning and Integrity Object They will perhaps say Where will you stop if not at Child and Balie's Case Ans Where why every where where there is any Inconvenience any danger of a perpetuity and where-ever you stop at the limitation of a Fee upon a Fee there we will stop in the limitation of a Term of years No man ever yet said a Devise to a man and his Heirs and if he die without Issue living B. then to B. is a naughty Remainder that is Pells and Browns Case Now the Ultimum quod sit or the utmost limitation of
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