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The Heads of the Judges Arguments for the Deceased Duke of Norfolk, in the Case between him and his Brother Mr. Charles Howard, with some Observations on the Lord Chancellor Notting∣ham's Arguments.
THE Judges all agreed that the Limitation to Charles Howard was a void Limitation of the Trust; and that the Bill ought to be dismissed, grounding their opinions on the following Reasons.
1. All the Trust of the whole Term was vested in Henry by the Limitation of it to him and the Heirs Males of his Body, which in Law is a Disposition of the whole Interest: such a Trust being indeed greater in its nature, than a Term of years is capable of, in regard it cannot go to Heirs Males, but therefore hath been often resolved to contain the whole Interest. And where a term for years is under such a Limi∣tation that will admit no Remainder, there can be no Contingent Remainder limited of such a Term; and to make that Limitation which could not be effectual by the Rules of Law, as a Remainder to take effect by calling it a springing use, is but a Quibble too light to have the countenance of the Law.
2. It's contrary to the Rules of Law, to limit an Interest either in Law or Equity of a Term, to take effect after any ones dying without Issue of his Body, and of a dangerous Consequence; for it would tend to make Perpetuities and fetter Estates: inasmuch as it is allowed of all hands, that if there can be such a Limitation by Law, allowed after a dying without Issue Male, there is no possibility of docking or destroying the Interests that are under such Limitations; so that such Estates can never be sold or parted with, no Recoveries reaching them, nor no Method in the Law nor possibility to do it, which would make Estates stagnate in a Family, and discourage all Ingenuity and Industry, which the Law perfectly abhors—And this the Lord Chancellor allows in his Arguments in this Case in his third Conclusion. And it mends not the matter, to say that this is under a Limitation of Thomas his dying without Issue in the Life of Henry; for
3.* 1.1 This is a stretch farther than ever before was endeavoured, the Judges have gone as far as is fit in indulging mens dispositions of Terms to take effects by Limitations after Lives—If this Limitation should be admitted (if Thomas dye without Issue in the Life of Henry, then the next strain would be to limit a Term over upon ones dying without Issue during the Lives of two or three, and then of twenty men: and then if he should dye without Issue within seven years, for that is equal to a Life, and then within twenty years, then why not within a hundred years, and then why not within a thousand, or during the term, &c. for all these are less Interests in the eye of the Law, than a Freehold, and where should we end or stop; for it must be confessed that there is the same reason for all these, as it was by experience found upon the Judgment of Mathew Manning's Case, when it was once allowed that a term for years might be limited to one, and if he died within the term then to another; it was soon found that there was the same reason to allow a Limitation of it after two as twenty Lives, which hath been the occasion of Fettering Estates exceedingly by such Limitations of terms to take effect after Lives, and made the Judges often repine at that Judgment, and declare that if it were now a new Case, since they have seen the Inconveniencies of it) it would never have been so adjudged. So Bridgeman in the Case of Grigg and Hopkins. Siderfin's Report fo. 37.
4. It's agreed on all hands that there is the same reason and ground of allowing Limitations of terms for years at Law, as there is for allowing Limita∣tions of trusts of terms for years in Equity and no other: Now there hath never been any Judgment that the Limitation of a Term to one, after anothers dying without Issue was good—It hath been often endeavoured, and (if it could have gained the Precedent of such a solemn Resolution) would no doubt of it, be too often practiced. But it hath always been disallowed, and many Judgments against it—Leventhorp and Ashby Pasc. 11 Car. 1. in B. Reg. Rolles 611. Sanders and Cornish Rolles 611, 612. Rolles 2. Rep. 1 Cro. Backhurst and Bellinghams Case. Mod. Rep. 115. and Burgis Case there reported.
And Child and Bayley's Case Trin. 15. Jac. Rot. 183. in Banc. Reg. which is a Judgment in the very Point—William Heath being possessed of a term for 76. years, by his Will devised it to his Wife, and afterwards to William his Son, provided that if William his Son should dye without Issue of his body then living at the time of his death, then Thomas his eldest Son should have the term; William did dye without Issue, living Thomas, yet Thomas could not have the term, because the whole Court of Kings-Bench adjudged that the Limitation to Thomas after the death of William without Issue (tho this Contingent was confin'd to a Life, as here it is) was void, for the reason before mentioned. And this Judgment afterwards affirmed in a Writ of Error in the Exche∣quer Chamber, by all the Judges of the Common Pleas and Barons of the Exchequer, so that it was a solemn Judgment of all the Judges of England, and which alone were enough to rule the Case in question.
Yet the Lord Chancellor Decreed this Limitation to Charles to be a good Limitation, and that he should hold the Barony during the residue of the term, and have an account of the Profits thereof from the death of Duke Thomas. Declaring his reasons to be as followeth.
1.* 1.2 Some men have no Estates but Terms of years; and he that hath a term of years, hath as much right to dispose of it, as he that hath a Fee-Simple.
2.* 1.3 Unless these words (if Thomas dye without Issue in the Life of Henry) have the effect of excepting this out of the common Cases of limitting terms over upon ones dying without Issue—The words are idle and of no effect.
3.* 1.4 This might have been done in another way (viz. by making the first term to cease upon this Contingency, and limitting a new one to Charles) and therefore shall be taken to be good this way.
4.* 1.5 That the meanness of a Term for years or Chattel Interest, is not to be regarded in Limitations of it.—It was at first disputed, whether it might be limited over, after a Life, and some opinions against it: but that afterwards obtained; and though the Judges would not allow a Limitation of it over after a dying without Issue; but he saw no Reason why it might not be allowed after a dying without Issue in such a ones Life; for that is but equal to a Limitation after a Life.
Then the Lord Chancellor seeks to evade the Case of Child and Baylie,* 1.6 by making several distinctions between that and the Case in question, which it's plain that he himself look'd upon but as frivolous, and saw there was no real difference be∣tween them; and therefore to fortifie his own Resolution, he is driven at last in plain downright terms to deny it to be Law, calling it a single Resolution, that never had any like it before or since.
And he opposes to this Resolution in Child and Baylie's Case, two other Cases; the one of Heath and Cotton, (which is nothing to the purpose, there being no Limitation after a dying without Issue, but only after a Death) the other of Wood and Sanders;* 1.7 where a Term is limited to the Father for his Life; then to the Mother for hers; then if John survive his Fa∣ther and Mother, to him; and if he die in their Lives, and leave Issue, to his Issue; if he die without Issue in their Lives time, then to Edward his Brother; he died in their Lives time without Issue, and holdeth that the Limitation to Edward was good.
Nevertheless the Lord Chancellor made such a Decree, That Charles should hold the Land during the residue of the term; urging further for his so doing, that it was the Will of Hen. Frederick, Father of the Plaintiff and Defendant, who was owner of the Estate; and therefore that it was equitable and just to decree that it should go accordingly; not allowing that mens Wills and Intentions are to be bounded by the Rules of Law, and no farther to prevail, than the Methods and Rules of Law warrant them.
There being afterwards a Bill of Review brought upon this Decree, before the now Lord Keeper; and his Lordship finding the said Decree grounded up∣on great Mistakes, and likely to be a ground it self of great Inconveniency, did reverse the said Decree, as being erroneous, and against Law, and dis∣missed the said Charles Howard's Bill.
Whereupon the Appeal is now brought in the Lords House.