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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A52524	The arguments of the Right Honourable, the late Lord Chancellor Nottingham upon which he made the decree in the cause between the Honourable Charles Howard esq., plaintiff : Henry, late Duke of Norfolk, Henry Lord Mowbrey his son, Henry Marquess of Dorchester and Richard Marriott, esq.: defendants : wherein the several wayes and methods of limiting the trust of a term for years, are fully debated.	England and Wales. Court of Chancery.; Nottingham, Heneage Finch, Earl of, 1621-1682.; Howard, Charles, d. 1713.; Norfolk, Henry Howard, Duke of, 1628-1684.	1685 (1685)	Wing N1402; ESTC R30748	19,382	38

THE ARGUMENTS Of the Right Honourable the late Lord Chancellor NOTTINGHAM Upon which he made the DECREE IN THE CAUSE BETWEEN THE Honourable Charles Howard Esq Plaintiff Henry late Duke of Norfolk Henry Lord Mowbrey his Son Henry Marquess of Dorchester and Richard Marriott Esq Defendants WHEREIN The several Wayes and Methods of limiting the Trust of a Term for Years are fully debated LONDON Printed for George Tatarshall Esq of Finchamsted in the County of Berks. MDCLXXXV The Arguments of the late Lord Chancellor Nottingham upon which he made the Decree in the Cause between the Honourable Charles Howard Esquire Plaintiff Henry late Duke of Norfolk Henry Lord Mowbrey his Son Henry Marquess of Dorchester and Richard Marriot Esquire Defendants Wherein the several wayes and methods of limiting the Trust of a Term for Years are fully debated 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 Digniy of Earl of Arundell 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 Taile to the rest Thus is the matter setled 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 Alehorne 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 Earldome 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 person did continue in the Seigniory for fear if he should dye quickly they should be compelled to pay a new Fine But nothing in the World can excuse Marryot from being guilty of a most wilful and palpable Breach of Trust if Charles have any Right to this Term so that the whole contention in the Case is to make the Estate limited to Charles void void in the Original Creation if not so void by the common Recovery suffered by the now Duke and the Assignment of Marryot If the Estate be Originally void which is limited to Charles there is no harm done but if it only be avoided by the Assignment of Marryot with the concurrence of the Duke of Norfolk he having notice of the Trusts then most certainly they must make it good to Charles in Equity for a palpable breach of Trust of which they had notice So that the question is reduced to this main single point Whether all this care that was taken to settle this Estate and Family be void and insignificant and all this provision made for Charles and the Younger Children to have no Effect I am in a very great strait in this Case I am assisted by as good advice as I know how to repose my self upon and I have the fairest opportunity if I concur with them and so should mistake to excuse my self that I did errare cum patribus but I dare not at any time deliver any Opinion in this place without I concurr with my self and my Conscience too I desire to be heard in this Case with great benignity and with great excuse for what I say for I take this question to be of so universal a Concernment to all mens Rites and Properties in point of disposing of their Estates as to most conveyances made and setled in the late times and yet on foot that being afraid I might shake more settlements than I am willing to do I am not disposed to keep so closely and strictly to the Rules of Law as the Judges of the Common-Law do as not to look to the Reasons and Consequences that may follow upon the determination of this Case I cannot say in this Case that this Limitation is void and because this is a point that in Courts of Equity which are not favoured by the Judgments of the Courts of Law is seldome debated with any great industry at the Barr

it had been a void limitation to Charles if then the addition of those words If Thomas dye without Issue in the life of Henry c. have not mended the matter then all that addition of Words goes for nothing which it is unreasonable and absurd to think it should 3. Another thing there is which I take to be unanswerable and I gather it from what fell from my Lord Chief Justice Pemberton and when I can answer that Case I shall be able to answer my self very much for that which I am doing Suppose the Provisoe had been thus penned And if Thomas dye without Issue Male living Henry so that the Earldome of Arundel descend upon Henry then the term of 200 Years limited to him and his Issue shall utterly cease and determine but then a new Term of 200 Years shall arise and be limited to the same Trustees for the Benefit of Charles in Tail This he thinks might have been well enough and attained the end and intention of the Family because then this would not be a Remainder in Tail upon a Tail but a new Term created Pray let us so resolve Cases here that they may stand with the reason of mankind when they are debated abroad Shall that be reason here that is not reason in any part of the World besides I would fain know the difference why I may not raise a new springing Trust upon the same Term as well as a new springing Term upon the same Trust that is such a chicanery of Law as will be laught at all over the Christian World 4. Another Reason I go on is this That the meanness of the consideration of a Term for years and of a Chattel Interest is not to be regarded for whereas this will be no reason any where else so I shall shew you that this Reason as to the Remainder of a Chattel Interest is a Reason that has been exploded our of Westminster-Hall There was a time indeed that this Reason did so far prevail that all the Judges in the time of my Lord Chancellor Rich did 6 Edvardi 6. deliver their Opinions That if a Term for Years be devised to one provided that if the Devisee dye living J. S. then to go to J. S. that remainder to J. S. is absolutely void because such a Chattel Interest of a Term for Years is less than a Term for Life and the Law will endure no limitation over Now this being a Reason against Sense and Nature the World was not long governed by it but in 10 Eliz. in Dyer they began to hold the Remainder was good by Devise and so 15 Eliz. seems too and 19 Eliz. it was by the Judges held to be a good Remander and that was the first time that an executory Remainder of a Term was held to be good When the Chancery did begin to see that the Judges of the Law did govern themselves by the reason of the thing this Court followed their Opinion the better to fix them in it they allowed of Bills by the remainder Man to compel the Devisee of the particular Estate to put in security that he in Remainder should enjoy it according to the Limitation And for a great while so the practice stood as they thought it might well because of the Resolution of the Judges as we have shewn but after this was seen to multiply the Chancery Suits then they began to resolve that there was no need of that way but the executory Remainder Man should enjoy it and the Devisee of the particular Estate should have no power to bar it Men began to presume upon the Judges then and thought if it were good as to Remainders after Estates for Lives it would be good also as to Remainders upon Estates Tail That the Judges would not endure and that is so fixed a Resolution that no Court of Law or Equity ever attempted to break in the World Now then come we to this Case and if so be where it does not tend to a perpetuity a Chattel Interest will bear a Remainder over upon the same Reason it will bear a Remainder over upon a Contingency where that Contingency doth wear out within the compass of a life otherwise it is only to say it shall not because it shall not For there is no more inconvenience in the one than in the other Come we then at last 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 dyes 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 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 dye 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

be limited in Tail the Law allows not a present Remainder to be limited thereupon yet it will allow a future Estate arising upon a Contingency onely and that to wear out in a short time But what time and where are the bounds of that Contingency You may limit it seems upon a Contingency to happen in a life what if it be limited if such a one die without Issue within twenty one years or a hundred years or while Westminster-Hall stands Where will you stop if you do not stop here I will tell you where I will stop I will stop where-ever any visible inconvenience doth appear for the just bounds of a Fee-simple upon a Fee simple are not yet determined but the first inconvenience that ariseth upon it will regulate that First of all then I would fain have any one answer me where there is no inconvenience in this Settlement no Tendency to a perpetuity in this Limitation and no Rule of Law broken by the Conveyance what should make this void And no man can say that it doth break any Rule of Law unless there be a Tendency to a perpetuity or a palpable inconvenience Oh yes Terms are meer Chattels and are not in consideration of Law so great as Freeholds or Inheritances These are words and but words there is not any real difference at all but the Reason of Mankind will laugh at it shall not a man have as much power over his Lease as he has over his Inheritance If he have not he shall be disabled to provide for the Contingencies of his own Family that are within his view and prospect because it is but a Lease for years and not an Inheritance or a Freehold There is that absurdity in it which is to me insuperable nor is the Case that was put answered in any degree A man that hath no Estate but what consists in a Lease for years being to marry his Son setled this Lease thus In Trust for himself in Tail till the marriage take effect and if the marriage take effect while he lives then in Trust for the married couple is this future limitation to the married couple good or bad If any man say it is void he overthrows I know not how many Marriage-settlements If he say it be good why is not a future Estate in this Case as good as in that when there is no tendency to a perpetuity no visible inconvenience All men are agreed and my Lord Chief Justice told us particularly how that there is a way in which it might be done onely they do not like this way and I desire no better argument in the world to maintain my Opinion than that For says my Lord Chief Justice suppose it had not been said thus if Thomas die without Issue living Henry then over to Charles but thus if it happens that Thomas die without Issue in the life of Henry c. then this Term shall cease and there shall a new Term arise and be created to vest in Charles in Tail and that had been wonderful well and my Lord of Arundels intention might have taken effect for the younger Son This is such a subtilty as would pose the Reason of all Mankind For I would have any man living open my understanding so far as to give me a tolerable Reason why there may not be as well a new springing Trust upon the same Term to go to Charles upon that Contingency as a new springing Lease upon the same Trust For the latter doth much more tend to a perpetuity than the former doth I am bold to say it But I expect to hear it said from the Bar and it has been said often the Case of Child and Balie is a great Authority so it is But this I have to say to it first the point resolved in Child and Balie's Case was never so resolved before nor ever was there such a Resolution since Pells and Brownes Case was otherwise resolved and has often been adjudged so since In the next place I will not take much pains to distinguish Child and Balie's Case from this though the word Assigns and the grant of the Remainder by the Mother who was Executrix are things that Rolls lay hold on as Reasons for the Judgment But I know not why I may not with Reverence to the Authority of that Case and the Learning of those that Adjudged it take the same liberty as the Judges in Westminster-Hall sometimes do to deny a Case that stands single and alone of it self And I am of Opinion the Resolution in that Case is not Law though there it came to be resolved upon very strange circumstances to support such a Resolution for the Remainder of a Term of seventy six years is called in question when but fifteen years of it remained and after the possession had shifted hands several times and therefore I do not wonder that the Considerations of Equity swayed that Case But I put it upon this point pray consider there is nothing in Child and Balie's Case that doth tend to a perpetuity nor any thing in the Settlement of the Estate there that could be called an Inconvenience nor any Rule of Law broken by the Conveyance but it is absolutely a Resolution quia volumus For it disagrees with all the other Cases before and since all which have been otherwise resolved but it is a Resolution I say meerly because it is a Resolution And it is expresly contrary to Wood and Saunder's Case which no Art or Reason can distinguish from our Case or that For here was that Case which was clipt and minced at the Bar but never answered Wood and Saunder's Case is this To the Husband for sixty years if he lived so long to the Wife for sixty years if she lived so long then if John be living at the time of the death of the Father and Mother then to John but if he die without Issue living Father or Mother then to Edward Suppose these words living Father or Mother had been out of the Case and it had been to John and if he die without Issue to Edward will any man doubt but then the Remainder over had been void because it is a Limitation after an express Entail How came it then to be adjudged good because it was a Remainder upon a Contingency that was to happen during two lives which was but a short Contingency and the Law might very well expect the hapning of it Now that is this Case nay ours is much stronger for here it is onely during one life there were two The Case of Cotton and Heath in Rolls comes up to this A Term is devised to A. for eighteen years the Remainder to B. for life the Remainder of the first Issue male of B. which is a Contingent Estate after a Contingency and yet adjudged good because the happening of the Contingency was to be expected in so short a time Now that Case was adjudged by my Lord Keeper Coventry Mr.

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 Vltimum quod sit or the utmost limitation of 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 vengeance 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 Bridgeman 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