THE Duke of Norfolk's CASE OR THE DOCTRINE OF PERPETUITIES Fully set forth and Explain'd Printed Anno Dom 1688. TO THE READER Courteous Reader THis Case in all its parts hath been Collected with all the Care imaginable by several good Hands and what grand agitation it received is not unknown to any that know Westminster-Hall It may be recommended to the World for Publick use upon that score alone For what can be more reasonably thought to please and take with Men of Judgment in any Profession than to peruse the Skill and Arts that have been curiously and with as great integrity made use of by men of the most Famous Reputation in what they profess Besides too if thou dost but consider the great Deliberations and the mighty Cautions that have been always used by all Persons concern'd in the Conduct Debate and Judgment of this Cause till after many Debates and Hearings at the Bar it came to receive its final Judgment in the highest Court of the Kingdom before the Lords in Parliament assisted by all the Judges of England Thou wilt certainly conclude That no unkind acceptance ought to demur upon this Case Here is variety of Learning manifest in the sundry Conceptions of Great and Learned Men but the Nicety lies chiefly upon the Doctrine and Explication of that abstruse Notion in Law called Perpetuities concerning which the Sage Opinions introductive to this Case of the great Council will better instruct thee that were prudently taken by both Parties before the Cause commenc'd and undoubtedly serve and answer the True Ends of a Preface infinitely beyond what thou canst expect from me Their Opinions in Private are always delivered with as much Candour and Caution as their Arguments at the Bar. And the one may be truly said to be of as great use to the Publick when their Opinions can be had if the Cause be Meritorious and will bear it as the other Reader it will be wholly impertinent to hold thee here and I should run my self upon an absolute necessity if I should detain thee longer from the fruition of those delicacies I present thee of troubling thee with my impertinent Complements for presenting thee with a needless and impertinent Epistle Wherefore enter in see it thy self and peruse it for thy profit and satisfaction Farewell THE Duke of Norfolk's CASE A. Bargains and Sells to L. the Barronies of Gr. and 20 Martii 1647. Br. for 10 Months A. Grants the Reversion of those Baronies to 21 Martii 1647. R. and D. and their Heirs to the use of A. for life Remainder to E. the Wife of A. for life Remainder to R. and D. c. for 200 years upon trusts to be declared by another Deed of the same date Remainder to H. H. his second Son and the Heirs Males of his body Remainder to C. H. his third Son and the Heirs Males of his body Remainder to E. H. his fifth Son and the Heirs Males of his body Remainder to A. H. his sixth Son and the Heirs Males of his body Remainder to B. H. and the Heirs Males of his body Remainder to the right Heirs of A. L. Attornes Tenant to R. and D. c. A. makes another Deed declaring the Trust of the Term 21 Martii 1647. for 200 years reciting it and the uses in the last-mentioned Settlement says in the reciting part That 't is intended that the Term should attend the Inheritance the Profits be received by H. H. and the Heirs Males of his body and for default of such Issue such other persons who according to the limitation of Uses should have had them if no such term had been so long as T. H. Eldest son of A. or any Issue Male of his body shall live But in case T. H. die without Issue of his body in the life of H. H. not leaving his Wife ensient with a Son or that after the death of E. H. by failure of Issue Male of T. H. the honour of A. should descend on H. H. then H. H. and his Heirs to be excluded of the Trust then the Indenture witnesseth that the Term shall be upon the Trusts and under the restrained Limitations and Proviso's after-mentioned viz. If T. H. or any Issue Male of his body be living in trust for H. H. and the Heirs Males of his body until by the death of T. H. without Issue Male and not leaving his Wife ensient with a Son or after his death by failure of Issue Male the honour of A. descends to H. H. and in case the Honour shall not descend to H. H. that after the death of H. H. the Trust shall be for the Heirs Males of H. H. and for default of such Issue in trust to permit such other persons and their Issue Male respectively to whom the Free-hold or Inheritance is limited by the former Deeds to take the profits as if no such Lease were And in case the Honour of A. descend upon H. H. then the Trust for H. H. and his Issue Male to cease And then as to the Barony of Gr. in trust for T. H. and the Heirs Males of his body Remainder to T. H. and the Heirs Males of his body Remainder to F. H. and the Heirs Males of his body Remainder to B. H. and the Heirs Males of his body Remainder to H. H. and the Heirs Males of his body Remainder to the right Heirs of A. the Father And as to the Barony of Br. as to one third part of it in trust for E. H. and the Heirs Males of his body Remainder to F. H. and the Heirs Males of his body Remainder to B. H. and the Heirs Males of his body Remainder to T. H. and the Heirs Males of his body Remainder to H. H. and the Heirs Males of his body Remainder to the right Heirs of A. And as to another third part of the Barony in trust for F. H. and the Heirs Males of his body with like Remainders to the other Brothers ut supra Remainders to the right Heirs of A. And as to the other third part in trust for B. H. and the Heirs Males of his body with the like Remainders to the rest of the Brothers ut supra A. died in 1652. E. the Wife of A. died in 1673. and then the term of 200 years commenced D. the surviving Trustee at the request of H. H. assigned 20 Novemb. 1675. the term to one Marriot Marriot assigned the term to H. H. 1 Dec. 1675 H. H. by Bargain and Sale enrolled sells to M. to make him 24 Octob. 1675. Tenant to the Precipe for suffering a Recovery The use of the Recovery declared to be to H. H. and his 25 Octob. 1675. Heirs T. H. the eldest Son of A. died without Issue or having ever Nov. 1677. been married Query If the Trust to H. H. be good and the other Trusts limited to the other Brothers on the Contingent in case T. H. died whereby
of Opinion that these Limitations to the younger Brothers upon this Contingency are absolutely void in the first Creation and are gone without the Surrender and that upon this Recovery Henry Howard now Duke of Norfolk ought to have the trust of the whole Term. The Expositions of Devizes of Terms or the Dispositions of the Trust of Terms have proceeded by many steps to higher degrees than was at first thought of by the makers It would be too long to give a distinct History of it but it is so plain that it is now a resolved and decreed thing and setled therefore it were in vain to tell you the steps taken towards it That the devize of a Term and the limitation of the trust of a Term to one and the Heirs of his body is good though Burgesses Case was onely for Life the Cases are very full in it On the other side where there is a limitation of a Term to one and the Heirs of his body there a positive Limitation of the Estate over after his death without Issue that I think also is as fully declared to be void I shall not cite Cases at large but onely those Points and Expressions in them which are peculiar and pertinent to this purpose there is Jinkins and Kennish's Case I think it was in the Exchequer there it was said it was such a total Disposition of the term to limit it to one and his Heirs Males that it would not admit of a Limitation over but adjudged to be void So in my Lord Rolls Abridgments 1 Part Tit. Devise fol. 611. 11 Car. 1. Leventhorp and Ashby's Case B. R. It is said that the Remainder of a Term to C. after it is limited to B. and the Heirs Males of his body is a void Remainder and fol. 613. he puts down the reason why the Remainder is void because the Limitation to one and the Heirs Males of his body is a full disposition of the Term. And if such Limitations over were permitted it would create perpetuities which the Law doth abhor Sanders and Cornishes Case Croke fol. 230. There it is resolved that the Devise of a Term in such a manner with Limitations after one another to make a perpetuity cannot be good For says the Book to limit a possibility and to limit the Remainder of a term after a dying without Issue stands not with the Rules of Law. Now to bring this Case within these Rules that if there be the Trust of a term to a man and the Heirs of his body no Limitation can be over I say then if this Estate be so limited to my Lord Duke by the name of Henry Howard the other will follow when there is a Limitation Intail though it cannot be properly stiled Intail of a Term yet it is a Disposition of that Term as long as the Tail lasts then there can be no Limitation over And as to that I think as the Deed is penned it may well be stood upon that here is an Estate given to Henry and the Heirs Males of his body For though the Deed says until by the death of Thomas without Issue the Earldom of Arundel shall descend upon him yet the first Limitation I think shall stop at the Heirs Male of his body and the Remainder over shall be then void But I will not stand upon that because I think I shall not need it but admit until by the failure of the Issue of Thomas the Earldom come to him makes it not an Estate to Henry and the Heirs of his body directly yet it gives an Estate to him and the Heirs of his body as long as Thomas has any Issue of his body and that I count to be all one as to the Operation of Law for each of the Estates must determine upon the persons dying without Issue which is too remote a Condition to limit the Remainders of a Term upon And this until he die without Issue and as long as he shall have Issue are terms Synonimous in my Opinion and so it being a Limitation to him and his Heirs of his body as long as Thomas liveth and hath Issue of his body it cannot be limited over and the rather upon comparing the former part of the Deed where there is an expression that it was intended the Estate should remain in my now Lord Duke so long as Thomas lived or had any Issue of his body Therefore I say there being in my opinion no difference as to operation of Law between the Limitations to a man and the Heirs of his own body and to a man and the Heirs of his body during the life of another and the Heirs of his body there can be no difference in the resolution It is as possible a disposition of the Term during the continuance of an Intail as the other and therefore no Remainder can be limited over But now the doubt in this Case that is made ariseth upon this point that this Limitation over to the Brothers is upon a meer Contingency and whether that be good I think is the main Question And truly upon the reasons of Child and Baily's Case I cannot think it is a good Limitation that Case has been so often reported that I need not put it at large In short this it was A Devise by A. of a Term to William his eldest Son and his Assigns and if he die without Issue then to Thomas his youngest Son there the Judges of the Kings-Bench did first deliver their Opinion that this was a void Limitation to Thomas And after it came into the Exchequer-Chamber and there by the Opinion of ten Judges it was affirmed and the reasons of the Judgement are not what was alleadged at the bar in this Cause but they went upon the ground because thereby a perpetuity would ensue and that which was observed by one of the Councel that the Term was given to him and his Assigns was onely an Answer to a Case put in the argument upon Child and Baily's Case which was the Case of Rhetorick and Chappell Hill. 9 Jac. R. 889. B. R. which was cited by my Lord Chief Baron Tanfield against the resolution of Child and Baily's Case to difference it from the Case then before them And though it was urged in Child and Baily's Case that it was given upon a Contingency to the younger Son which would soon be determined and end in a short time yet that weighed not with the Judges but that they ruled it to be a void Limitation and I met lately with a Judgement in the Common-pleas which crosseth that Case of Rhetoricks and Chappell's it was Hill. 31 and 32 Car. 2. Reg. 1615 Gibson's and Sanders's Case Matthews possessed of a long Term of years having Issue a Son and three Daughters makes his Will and devises his Chattel-Leases to his Son and if that Son die before Marriage or after Marriage without Issue that then they should go to the Daughters The Son doth Marry and dieth without
the Kingdom and ought to take place in this Court as well as any other Court. So I take it then that the Trust of a Term is as much a Chattel and under the consideration of this Court as the Term it self and therefore I cannot see why the Trust of a Term upon a voluntary Settlement should be carried further in a Court of Equity than the Devise of a Term in the Courts of Common Law. It is true where there is a long Term in being upon Mortgage and as a security which is determined it is of great conveniency that it should be kept on foot to protect the Inheritance and so it will lie still to wait upon the Inheritance and thereupon in many Descents it will go from Heir to Heir and that upon a particular consideration to attend and protect the Inheritance But for a meer Chattel to go from Heir to Heir is not the same case nor do I see any reason why this Court should carry such a Chattel any further than Devises of terms are carried at Common Law. Now let us see and a little consider what those Rules are and how they are appliable to this Case In both cases a Term may be limited for life to one with Remainders over though in the bare consideration of Law an Estate for life is a greater Estate than a Term for years but in case of an Estate-tail there can be no such thing therefore in Burgesses Case the Trust of a term is limited to A. for life the Remainder to his Wife for life the Remainder to the first second and other Sons successively and the Issue of their bodies and for default of such Issue to the Daughters of A. and their Issue the Remainder to the right Heirs of A. A. had no Son at that time living nor after but the Remainder over was to the Daughter of A. in being It was strongly urged that the Daughter should have the Trust vested in her and that the Trust for the Daughter should close with the Estate for life till A. should have a Son. But because there was a Limitation to the first Son of A. and the Issue of his body and the Remainder of the Daughter was but to take place after that Son died without Issue and so the others though it was not to a Son then in being But his Estate was in contingencies which did never happen yet the Court did not allow of any such thing as any Remainder that the Daughter should have but made a Decree for the execution of the Devisee so that it is clear there can be no direct Remainder of the Trust of a term upon an Estate-tail The Question then is whether there can be any contigent Remainder for this for this Case depends upon that consideration i. e. it is limited upon a Contingency if such a thing should happen in the life of a man and so it is a springing Trust and good that way My Lord I take it in this case where there can be no direct Remainder there can be no contingent Remainder though it happen never so soon Therefore if a Term be limited to one and his Heirs of his body and he die without Issue of his body within two years the Remainder over there can be no such Remainder limited at all and therefore no contingent Remainder for this Remainder is limited at the end of an Intail and that is so remote a consideration that as the Law will not suffer a direct Remainder upon it so upon a Contingency neither Now in this Case there is onely this difference if the Estate-tail in this Term had been limited to my Lord Maltravers as 't is here to Henry Howard and the Heirs of his body and if he die without Issue in the life of Henry c. then the Remainder over then it had been clear the Contingency had been limited upon the expiring of the Intail and though it be said that it expires within the compass of the life of a man yet that helps not in this Case at all as I conceive for I will put a case upon a Fee-simple upon Pell and Brown's Case A man limits an Estate in Fee-simple to a man and his Heirs and if he die without Heirs during the life of J. S. then to J. D. this is void and the Lord shall have it by Escheat and that though it be brought within the compass of the life of a man shall never be a good Limitation And if that Case of Pell and Brown had been that a man devised Land to a man and his Heirs whereby it would appear that it was intended the Devisee should have had a Fee-simple with a Remainder over upon a Contingency I take it this could not be good by way of executory Devise because a mans dying without Heirs which to lose his Fee-simple he must do comes not under the intention of the Law as of a Contingency An Estate for life in the judgment of the Law is of longer duration than a Term for years and the Rule in Child and Baily's Case is firm that the expiring of the Limitation of a Term in Tail within the life of a man will not make good a Limitation of the Remainder over which I hold to be a good Rule and the reason of it I conceive will reach to this Case For what is the difference here is a Contingency indeed but it is to have an Estate-tail expire within one Life which I take to be the same case Suppose the Term had been limited to Henry and the Heirs Males of his body so long as Thomas shall have Heirs Male of his body that would sure have cut off the Remainder and what is the difference For it doth depend upon Thomas dying without Issue whereby the Earldom should descend then when it is limited to Henry and the Heirs Males of his body And if Thomas die without Issue in the life of Henry then over this can no more abridge it than if he had said if Henry die without Issue during the life of another man. So that I think the whole Term is swallowed in the Estate-tail upon this consideration and there can be no Remainder of it no executory Devise nor any springing Trust to Charles upon this Contingency and my Lord upon that reason I think this Settlement fails and is disappointed as to the younger Brothers If it had been limited to Henry for Life onely and no further then let the Contingency have been what it would that were to happen in his life if complicated with several ascendents yet it should be good in Remainder because the Law doth allow a Remainder directly upon an Estate for Life and so it would also in Contingency if that were to happen during the continuance of the particular Estate But I take this to be a step further than any of our Resolutions in Law have gone yet and therefore I cannot see reason to extend the Exposition any further but
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
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 concur 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 settled 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 seldom debated with any great Industry at the Bar but where they are possessed once of the Cause they press for a Decree according to the usual and known Rules of Law and think we are not to examine things And because it is probable this Cause be it adjudged one way or other may come into the Parliament I will take a little pains to open the Case the Consequences that depend upon it and the Reasons that lye upon me as thus perswaded to suspend my Opinion Whether this Limitation to Charles be void or no is the Question Now first these things are plain and clear and by taking notice of what is plain and clear we shall come to see what is doubtful 1. That the Term in Question tho' it were attendant upon the Inheritance at first yet upon the hapning of the Contingency it is become a Term in gross to Charles 2. That the Trust of a Term in gross can be limited no otherwise in Equity than the Estate of a Term in gross can be limited in Law for I am not setting up a Rule of Property in Chancery other than that which is the Rule of Property at Law. 3. It is clear That the legal Estate of a Term for Years whether it be a long or a short Term cannot be limited to any Man in Tail with the remainder over to another after his death without Issue That is flat and plain for that is a direct perpetuity 4. If a Term be limited to a Man and his Issue and if that Issue dye without Issue the remainder over the Issue of that Issue takes no Estate and yet because the remainder over cannot take place till the Issue of that Issue fail that remainder is void too which was Reeves Case and the reason is because that looks towards a perpetuity 5. If a Term be limited to a Man for life and after to his first second third c. and other Sons in Tail successively and for default of such Issue the remainder over tho' the contingency never happen yet that Remainder is void tho' there were never a Son then born to him for that looks like a perpetuity and this was Sir William Backhurst his Case in the 16. of Modern Reports 115. this King. 6. Yet one step further than this and that is Burgis's Case A Term is limited to one for life with contingent Remainders Modern Reports 115. to his Sons in Tail with remainder over to his Daughter tho' he had no Son yet because it was foreign and distant to expect a Remainder after the Death of a Son to be born without Issue that having a prospect of a perpetuity also was adjudged to be void These things having been settled and by these Rules has this Court always governed it self But one step more there is in this Case 7. If a Term be devised or the Trust of a Term limited to one for Life with twenty Remainders for Life successively and all the persons in esse and alive at the time of the Limitation of their Estates these tho' they look like a possibility upon a possibility are all good because they produce no inconvenience they were out in a little time with an easie interpretation and so was Alford's Case I will yet go farther 8. In the Case cited by Mr. Holt Cotton and Heath's Case a Roll. abr tit devise 612. Term is devised to one for 18. Years after to C. his eldest Son for Life and then to the eldest Issue Male of C. for Life tho' C. had not any Issue Male at the time of the Devise or death of the Devisor but before the death of C. it was resolved by Mr. Justice Jones Mr. Justice Crook and Mr. Justice Berkley to whom it was referred by the Lord Keeper Coventry that it only being a contingency upon a Life that would be speedily worn out it was very good for that there may be a possibility upon a possibility and that there may be a contingency upon a contingency is neither unnatural nor absurd in it self but the contrary Rule given as a Reason by my Lord Popham in the Rector of Chedington's Case looks like a Reason Co. 1. 156. of Art but in truth has no kind of Reason in it and I have known that Rule often denied in Westminster-Hall In truth every Executory Devise is so and you will find that Rule not to be allowed in Blanford and Blanford's Case 13. Jac. 1. part of my Lord Rolls 318. where he says If that Rule take place it will shake several common Assurances And he cites Paramour's and Yardley's Case in the Commentaries where it was
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
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
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