The Duke of Norfolk's case, or, The doctrine of perpetuities fully set forth and explain'd

THE Duke of Norfolk's CASE.

A. Bargains and Sells to L. the Barronies of Gr. and* 1.1 Br. for 10 Months.

A. Grants the Reversion of those Baronies to* 1.2 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, Remain∣der to C. H. his third Son, and the Heirs Males of his bo∣dy, 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* 1.3 for 200 years reciting it, and the uses in the last-mentioned Settlement says in the reciting part, That 'tis intended that the Term should attend the Inheritance, the Profits be recei∣ved by H. H. and the Heirs Males of his body; and for de∣fault 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 o∣ther 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* 1.4 the term to one Marriot.

Marriot assigned the term to H. H.* 1.5

H. H. by Bargain and Sale enrolled, sells to M. to make him* 1.6 Tenant to the Precipe for suffering a Recovery.

The use of the Recovery declared to be to H. H. and his* 1.7 Heirs.

T. H. the eldest Son of A. died without Issue or having ever* 1.8 been married.

* 1.9If 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

the Honour of A. should descend to H. H. be good or void, relieva∣ble or not relievable in a Court of Equity, the Term being surren∣dered?

I am of opinion, that the Trusts to all the Brothers of H. H.* 1.10 in his term are void, and no ways relievable in Equity: For if these Limitations, being made after T. H. shall die without Is∣sue Male of his body, were good in their Original Creation to the Brothers of H. H. it must be by the attendancy of the term upon the Reversion of the Estate which was so intailed, and then when their Estates in remainder were docked by the recovery which H. H. suffered, and the Trusts that attended on them were likewise destroyed, and can never survive the Remainder on which they depended, no more than they could have stood alone in their Original Creation.

I conceive that the Trust for the term is appointed to wait* 1.11 upon the Inheritance in the forepart of the Deed, though seem∣ing contrary to the latter part is not so, but both may be re∣conciled (that is to say) shall wait upon the Inheritance up∣on such Contingencies as hereafter is expressed, being the Trust is limited and in the same order, onely the Contingencies of the death of T. H. without Issue, &c. prout.

The Trust of the term limited to H. H. and the Heirs Males of his body, with Remainders over as this Case is, I think is a good Trust, and will go accordingly, so long as there is no charge made, though regularly a Term for years cannot be entailed, yet it may be made to wait upon the Inheritance that is in∣tailed.

But when it is so limited, 'tis not properly an Intail within the Statute de bonis, but governable partly in Equity, and part∣ly in Law.

H. H. to whom it is so intailed may dispose of it, and there∣by bind his Issue without Fine and Recovery, as I conceive. And the Term so limited Intail, shall be subject to his Debts against the Issue Intail, as I also conceive.

By the Recovery suffered by H. H. all the Intails are barred, and consequently the waiting of the Term upon the Inheri∣tance destroyed, because the Inheritance it self is changed; but the bare surrender of the Trustee could not have that ope∣ration if nothing else had been in the Case.

But the greatest question in this Case, I conceive, will arise upon the death of T. H. without Issue and the other Contin∣gencies, because the Trust of the term is not limited to H. H.

absolutely, but to cease upon those Contingencies, and then to be altered; yet seeing the main intention of the Settlement was to make the Term wait upon the Inheritance, as by the recital of the Deed, and when it changes is limited by way of Inheritance.

Therefore I conceive that H. H whilst he was owner of the Inheritance and trust of the Term, suffered a Recovery, the Contingent trust of the Term to the others are de∣stroyed.

In Law they have no Relief, because the Estate for years is surrendred, and I conceive the Chancery will not support such leaping Limitations of a Term for years, especially when it cannot take effect in toto, as the contingent Limitations are, and the Remainders in that case will be void.

M—d.

I am of opinion that the Term being limited to H. H. and* 1.12 the Heirs of his body under other Limitations than the Inhe∣ritance was, the whole term vested in H. H. and the Limita∣tions thereof to the other Brothers were void: For a Trust of a Term cannot be intailed unless it be to attend an Inheri∣tance; and the limitations of the Trust differing from the li∣mitations of the Inheritance, 'tis all one as if the Trust of the Term was limited, without respect to any Inheritance, in which Case the limitations of the Term to the other Brothers would be clearly void. Next I take it to be clear, that taking the Trust of the term to be attendant to the Inheritance of the Recovery, having barr'd the Remainders of the other Bro∣thers as to the Inheritance, the Trust of the term must needs be wholly in H. H. and that the other Brothers can never claim the same in Equity: For since the Inheritance (as intendant to which they could only be entitled to any part of the Trust of the term) is vested wholly in H. H. and no remainder left in the Brothers, there can be no Remainders in any of them of the Trust of the term; but as the whole Inheritance is now in H. H. so doth the whole Trust attend that Inheritance.

W. Jones.

I am of opinion, that the now Duke of Norfolk and Earl* 1.13 of Arundel, have a good Title to the said Baronies. First, in Law 'tis clear, that the Term is surrendred; and so if any Title re∣main to the younger Brothers, it can onely be in Equity. And Secondly, I think there is no Title in Equity, as to which it may be insisted upon, that if the Limitations of the Trust of the term were at first good; yet seeing they are chiefly to at∣tend the Inheritance, and that Inheritance by the Recovery is

changed and made a Fee Simple, and this before the Contin∣gency in the limitation of the Trust of the Term happened, whereby the limitations of the Trusts are changed, and the younger Brothers cannot have the Term in the same plight, nor during the same Estate, as were at first designed. I say, from these Considerations it may be concluded, that the limi∣tations of the Trust of the Term are destroyed; but that which I do most rely upon, is, that the first limitation of the Trust of this Term under this Contingency, was altogether void; as to which, the Case is no more than that a Term of 200 years is granted in trust, that H. H. and the Heirs of his body shall receive the Profits, until by the death of T. H. and the failure of Issue-Male of his body, the Honour of A. shall come to H. H. and in case the Honour of A. shall descend to H. H. then the Trust for him and the Issue-Male of his body to cease; and then 'tis limited respectively to the younger Bro∣thers, and the Heirs Males of their respective bodies; I con∣ceive these limitations to the younger Brothers are void. First, it will be agreed, that the limitation of the Trust of a Term to one and the Heirs-Males of his body, and for want of such Issue to another is void. As to the Second, I think it as clear, that if a Trust of a Term be limited to one, as long as John a Styles hath Issue of his body, and that John a Styles die without Issue of his body, then to another that Remainder is void: Likewise that which seems to make the doubt in this present Case is, that the Contingency must happen within a Life (viz.) the Honour of A. descend to H. H. which must be to him in his lifetime, or not at all. To which I answer, that though a Contingency be remote in it self, and not likely to happen within a Life, the time within which it ought to happen, or not at all; doth not alter the case, and therefore in Child and Bayly's Case, reported in 2d of Coke, and by Jones and Palmer, the failure of Issue was limited to be within a Life (viz.) a Term was devised to one and his Assigns, and if he die without Issue of his body living, at the time of his death, then to another: this was adjudged no Remainder unto that other; and though 'twas objected that the Contingency must happen within the compass of life, or not at all, yet no regard was given to that. This Case seems to me in reason to be the same with ours. I do observe, that no Case can be found, whether limitation either by way of Trust or Devise of a Term hath been allowed to take effect upon a failure of Is∣sue, or after death of the party to whom the first Estate was limited without Issue. And as in Child and Bayly's Case the

Judges say, as I have often heard them say in other Cases (that if Matthew Maning's Case was now to be adjudged, it would not be so adjudged; and that case is) a Term is demised to one for life, and after his death to another, which is allowed good, and that they would not go a step farther so. I say, in this Case it must go further than Manning's Case, or any other Case that adjudged to make it void.

William Jones.

The Case is new, and without any express President, and* 1.14 therefore not capable of so certain a determination as would be expected, in case advice were to be given, whether a Pur∣chaser should deal in the buying of a Lease or not.

Yet though there be no President in point, yet such-like Cases have been determined as guide my Judgement and Opi∣nion to be (scilicet) that as this Case is circumstantiated, Charles hath not, nor can have a right to the Trust of the Term, the Reasons and ground of my Opinion is as fol∣loweth.

First, The Trust of the term for years in gross, and sepa∣rate from an Inheritance, cannot be intailed in Possession or Re∣mainder; but yet where there is a Term for years in being, if the Inheritance of the Land be intailed with Remainders o∣ver, there the Term may be limited to wait upon the Inheri∣tance, according to the several Intails; and such limitation is good, so long as nothing intervenes to interrupt or disturb it.

But I conceive is not capable of such Priviledges of Intail as Inheritance is, for the Intail is confirmed by the Statute of Westm. 2d de bonis; but the attendance of the Term upon the In∣heritance intailed, is not within the Statute de bonis, &c. but is a Creature of the Chancery, and in several Cases may be de∣stroyed and barred, though no Fine and Recovery or other bar be made of the Inheritance.

I conceive such case if the Tenant intail Alien without Fine or Recovery for valuable Consideration, the Issue Intail shall avoid the Inheritance, the Chancery shall never help him to a∣void the Lease.

In this particular Case it is clear, that neither Charles nor a∣ny in Remainder, can recover this Term at Law, but onely by suit in Chancery; and in Chancery shall never recover where the limitation of such a Term in being is not supportable in Common Law, which in this Case it is not, as I conceive; for take the Case without the Contingency, that Henry was Te∣nant Intail, Remainder to Charles Intail, &c. the Recovery

suffered by H. would have bar'd Charles and the rest of the term, as well as of the Inheritance.

But the sole Objection here is, that the trust of the term to Henry is expressed, that it shall determine quo ad Henry and his Issue, in case Tho. Duke of Norfolk dye without Issue, living Charles, as in this case he did.

The strength of this Objection lies in this: First, That the Cessor of the Trust is to be upon the death of a Stranger with∣out Issue (scil.) on Tho. Duke of Norfolk, on whom the Lands were not Intailed. And secondly, The term is not to cease, but upon the death of Tho. Duke of Norfolk without Issue in the life of Henry.

As to the first, it will make no difference in Reason and in the pollity of the Law, where the Cessor is limited on the death of a Stranger without Issue, or of the Tenant Intail without heir of his body. For first,

In both Cases the possibility is remote and not regarded in Law, where a term is so limited, and so were the resolutions in Childs and Bayly's Case, and divers others.

This would be a way to set up a perpetuity, as strongly as that it was limited upon the death of the Tenant in tail with∣out Issue.

Put the case there be Father and several Sons A. B. and C. and the Father is seized in Fee of the reversion of Lands, after a Lease of 200 years he settles the Inheritance upon his eldest Son in tail, with Remainders in tail to his other Sons; and this Lease being in Trustees for him at the same time, causes the Lease to be setled in Trustees in Trust for the Sons, to wait on the Inheritance in Trust accordingly, provided that the second Son dye without Issue in the life of the Father or Son, the Trust of the eldest Son to cease.

I conceive this would not be maintained in Equity, if the second Son should not alien by Fine and Recovery.

As to the Second Objection, that the Cessor is on the Death* 1.15 of Tho. without Issue in the Life of Henry, whereby the Con∣tingency is reduced to happen in the Life of one person (viz.) Henry, and not at large (viz.) of the death of Tho. without Issue, I conceive no difference made thereby, and it is in effect the point adjudged in Child and Bayly's Case which was thus: French a Termer for 76 years demises to his Wife for Life, Remainder of the Term to W. his Son and his Assigns, Pro∣visee, That if his Son W. dyed without Issue of his body then living, That T. his Son should have the Term or Interest.

Adjudged then in B. R. which was three years after affirmed* 1.16

in the Exchequer Chamber by Hobart, Winch, Denham, Hut∣ton, and Jones, that the Demise to Tho. was void.

In that Case the Contingency did expect during the life of W. onely as here it is on the life of H. and the Reasons of their Judgments both in the Kings Bench and Exchequer-Chamber, in effect of all the Judges of England at that time, was because it might tend to make a perpetuity, and that this new-invented way of Intailing of Terms in no sort to be favoured in Law.

In Child's Case 'twas limited, if William had no Issue at the time of his decease; in this Case, if Tho. had no Issue at the time of Henry's death.

Put case it had been limited, that Tho. had dyed without Issue in thirty or forty, or any number of years, or if it had been limited that Tho. had dyed without Issue in the Life of Henry, and five or six more persons, it might have been so li∣mited as well as to one Life, and the Law is the same.

It is more Contingent when the Cessor is limited to be upon the death of Tho. without Issue in the life of Henry, then it had been if Tho. had dyed without Issue generally; for he may dye without Issue, though he dye not without Issue in the life of Henry.

First, the sum of this is, if such limitation of a Term as this is, be not good at Law, the Trust of a Term cannot be good in Chancery.

Secondly, the general scope of the Settlement of the Term was, that the Term shall wait on the Inheritance Intail, which now cannot be, because it is altered.

Again, if the Law should be otherwise, that Charles have the whole Term, then those in Remainder shall be utterly defeated of it, and shall not go to Charles his Son and Heir, but to the Executors, which was never intended by the Deed.

M—d.

I conceive, that notwithstanding the late Judgments in* 1.17 Chancery have been, that if a Term of years be limited by way of Trust, or otherwise, to any person and his Heirs Males, with Remainders over, or other limitations to any other persons, those Remainders and Limitations are void, and the whole Term shall be to that person and his Executors and Administra∣tors, to whom it was first limited in Tail; yet this Case is different from all those Cases, by reason this was onely a Temporary Provision as to Mr. Henry Howard, until that Con∣tingent of the death of the Duke of Norfolk should happen, and then absolutely to cease as to Mr. Henry Howard. And then the Trust of the Term is declared to be for the preferment of

the younger Sons, as is above expressed; and albeit that Mar∣riot hath in plain breach of Trust by his Assignment, enabled the now Duke to destroy the Term in point of Law; yet the Chancery may subject the Lands during the Remainder of the term to the Trustees for the younger Children, as agreeable to the intention of the Deed of Trust, and to all Honesty and Equity, and that Equity I take is in no sort bar'd by the Fine, if a Bill be exhibied in time.

J. C.

8 Jan. 1677.

I concur with this Opinion, because it is no absolute Trust,* 1.18 not so much as for the life of Henry, but a limited Trust upon a Contingent, which as in its Creation it might, so in Fact, it did happen in the life-time of Henry; and consequently there is no room for any Construction to be made, that the Trust of the whole term vested in Henry against the express limitation thereof.

R. S.

I conceive, first, that if by Act executed my Lord of Arun∣del* 1.19 had created this term to my Lord Dorchester, and the rest of the Trustees in trust for Henry Howard in tail, and after his death to the Brothers in tail, that had been a perpetuity, and not good for a term; though as to that, there is a difference taken in Tatten and Mollenex Case, More 809, 810. in Chance∣ry, by the Lord Chancellour, and the Judges assistant; which seems to be reasonable, that the first party that is the Cesti{que} Trust against his Issue, may dispose of it, but not against him in Remainder; for Equity preserves it as to the Remainder, so then if it had been to Henry Howard and the Issues of his body, the Remainders to the Brothers: Though Henry Howard could, as to his Issue, dispose of it, yet as to his Brothers it stood good, if that Resolution holds good, and the Books says it was grounded upon presidents in that Court too. But this case dif∣fers where the course of Equity is against it; therefore, first there is onely by this Conveyance a reception of the profits in Henry Howard and the Issue Male of his body, until the Digni∣ty of Arundel come to him. And it is not in trust for him and his Issue Male; so as he has not the entire trust in him, as the other Sons have by the penning of the Deed. Secondly, 'tis not absolutely in trust in him and his Issue Male, but tempo∣rary in them, upon the falling of the Dignity of Arundel sooner or later, and he is not a Cesti{que} trust within any of the Statutes proceeding in the Statute of Uses, but has but a limited pur∣suance of the profits; but the trust vests compleatly in the Brothers after. Thirdly, then the Marquess of Dorchester assigns

the term to Marriot, and he assigning to H. H. whereby he has in strictness of Law extinguished it, whereby there is a wrong and deceit done to the Brothers, he is bound in equity and good Conscience, to make them recompence and satisfaction for this wrong; and it appearing that H. H. was privy to this, with a design to extinguish it, and that extinguishment turning to his advantage, he is likewise compellable in Equity to an∣swer it out of his Estate, either by creating a new Term in this Land, or by some other way, according to the Resolution of the Judges in my Lord of Ormon's Case, Hubbard 350.

I have seen the Opinions of Mr. Attorney-General, Serj.* 1.20 Maynard, and Serj. Pemberton, whose Opinions I do much va∣lue, and have great esteem for. Mr. Attorney saith, that the Term to H. H. and the Heirs of his body, under other limita∣tions than the Inheritance was, the whole Term vested in H. H. and the Limitations thereof to the other Brothers are void, I conceive the whole trust of the Term is not limited to H. H. but part of the Trust, so long as Thomas the deceased Duke shall have Heirs Males of his body, and until the Earldom comes unto him; so as the Trust is but a qualified and limited Trust in H. H. so as this Trust to H. is now ended by way of limitation to H. H. and then there is a new Trust springs and arises to the younger Brothers, not by way of Remainder of a term, but the Trust to H. H. being ended and determined, I conceive a new one may well arise and spring up to the youn∣ger Children, admitting it were a trust of a term in Gross, it is not a Remainder, but a future Contingent grant and a limi∣tation to them, as it is in Pell and Browns Case.

Secondly, If it be to attend the Inheritance, then he con∣ceives clearly, the Recovery having barred all Remainders, the Term and the trust of the Term is also barred. If this Trust had been to wait upon all the Estate as they came in possession, it had been the stronger; but as this Case is, I conceive the Trust will wait upon the Estate of H. H. for so long as Tho. lives, and hath Heirs Males of his body, and until the Earldom come unto him, and the Trust of Henry determines, and then a new Trust springs up to the younger Children, which is a fu∣ture contingent trust, so as a common Recovery can bar this Trust, so long onely as they did wait upon the Estate of H. H. which is now determined by a collateral Limitation, and the Reco∣very cannot enlarge the Trust to H. H and make that to con∣tinue which in its Creation was to end when such a Contin∣gent happens, which hath now hapned if H. H. had not suffer∣ed

a common Recovery, he had had an Estate-tail, yet no Trust, this is a future contingent Trust to the younger Chil∣dren, which cannot be barred by a common Recovery.

W. Ellis,

8 Martii 1677.

1. The Surrender or Grant of the Lease for 200 years to* 1.21 Henry, nor the extinguishment of the legal Interest of the term, doth not prejudice the equitable Trust of the term, so long as the Lands comes not into other hands (viz.) of a Pur∣chaser, without notice of the Trust, which is not in this Case.

2. An Intail cannot be made of a term in Gross, as if a Lease for 1000 years be made in trust for J. S. and the Heirs of his body, with Remainders over, J. S. may dispose of the whole term, and such disposal is good against his Issue and those in Re∣mainder; and if he die without such disposition made by him, his Executors shall have the benefit of the Trust, and not his Issue or the Remainder.

3. But a Term may be limited to attend and wait on the Inheritance by way of a trust, as if a long term of years be the Reversion in Fee, if the Reversion be purchased in Fee, or setled in tail, the term may be setled to the use of the Fee or Tenant intail; and in that case, if the Tenant intail die, or the Tenant in Fee die, the Heir or Issue shall have the benefit of the trust, and not the Executors, &c.

4. But in that Case, if the Tenant in Fee die in debt, and no other sufficient Assets to pay the debt, in that case the Exe∣cutor shall be preferred before the Heir, although the debt be such as the Heir is not bound or liable unto.

5. And I conceive, that in that case, if the Tenant intail, that hath the Equity of a term waiting on it, do purchase the term and alien, or obtain the Trustee of the term to make an alienation of the term, it shall bind the Issue intail and him in Remainder, though the Alienation be by Deed without Fine or Recovery, because the term in Law is well aliened without Fine, &c. And the Statute of Westm. 2d de bonis extends not to a Case of a term.

6. Yet it is true, this doth not absolutely determine the Case in question upon three accounts.

First, It is a new Case not yet brought in question.

Secondly, Because here is a springing and a new trust by ac∣cident subsequent, and alters the Trust, and changes the Intail of the term to other persons, from Henry to the younger Chil∣dren,

and on such accident takes away the Trust wholly from Henry the first Tenant in tail.

And Thirdly, the Change seemeth to be grounded on great reason; for the Lord Maltravers being in such condition as he was in, there was great reason to disable him and provide for the younger Children, as is done by Case; and if Henry should come to be Earl, and have addition of Estates, that the other younger Children should also have accession of Estate to them, and so it is by this Deed of trust provided.

But notwithstanding these reasons, and this difference of the Case in these circumstances from other Cases already resolved, and the contrary Opinions that I have seen, I am rather of the opinion, that in this Case the younger Brothers are bound by the Recovery suffered by Henry, than convinced that they are not bound; for I find that the Reasons given e contra, touch not my doubt fully.

The Reasons of my Opinion are (viz.)

1. For the Recovery suffered, and the time when it was suffered (to wit) before the Lord Maltravers dyed; for till he dyed, Henry was Tenant in tail, and had power by a Recove∣ry to bar and dispose of the whole Inheritance, as well of his his own Estate tail, as of those in Remainder: The term of years was but accessary to serve and attend the Inheritance which was principal.

2. And the onely reason that made such intailing or limi∣tation of the term good, was, because it was to wait on the Inheritance, first to Henry in tail, and so successively to the o∣ther Brothers; or else, as it is abovesaid, the limitation had not been good: And when that reason fails, and the cause why it was a good limitation ceaseth and is taken away, the effect of it doth likewise cease.

3. The change of the term into thirds, doth not change the Estates tail of the younger Brothers, and cannot stand with the intention of the Deed of Trust: For I think it clear, if Charles, admitting he come to the Inheritance as owner, or if in the life of Henry he could get a Tenant of the Freehold of all, or any part of the Land to joyn with him, should then suffer a Reco∣very, it would bar Edward, Francis, and Bernard, of so much of the third part whereof such Recovery should be suffered, viz. of the whole Inheritance, and a third of the term and the residue (to wit) the other two parts would respectively cease, and be intailed as to the term, and be wholly in the respective disposition of Edward and the rest, and go to their Executors, not to their Issues or the Remainders.

And yet upon long consideration of the Case, there is ano∣ther, and a further ground of my doubt of what hath been said (viz.) not onely because it is a new Case, and concerneth a Great and Noble Family, but on another and further ground observed and insisted upon by such great Opinions, contrary to what I have above observed (viz.) that it is not onely a springing and contingent use to the younger Brothers, respe∣cting them but because the Original Trust to Henry, viz. that the Trust to him and his Issue is, as to him and them, under a Limitation; and that not so long as he the Tenant in tail shall have Issue, but so long as the Lord Maltravers shall have Issue Male, and on that reason the Case is more doubtful.

M—d.

1. I agree, that if a man have a term for a 1000 years, and* 1.22 he grants and demiseth this to one and the Heirs Males of his body, the Remainder to another and his Heirs, that this term cannot be intailed, nor a Remainder limited upon it; and that upon the death of the party to whom the term was so given, it shall go to his Executors as a Chattle, and not to his Heirs Male.

2. I do conceive it will not be denied by any, that if there be a long term for years, for a 1000 years, more or less in trust, and a man purchases or settles the Inheritance to the use of himself for life, the Remainder in Tail, the Remainder in Fee, and declare that the trusts of the term shall wait upon those Estates, and fall in with them. But that this trust of the term shall go along with all the Estate, and shall not be merged in any of them, and this trust shall not go to an Executor, but shall go along with the Estate, and if the tenant in tail dye without Issue, it shall go along with the next Remainder man in tail, and after his death without Issue, it shall go to him in Fee simple, and attend all the Estates in Remainders, be they never so many. And this, I conceive, is the common course in Chancery to incorporate such trusts to go with all the E∣states. This is not an absolute Trust for Henry and the Heirs Male of his body, but a limited and qualified Trust as long as Duke Thomas's elder Brother lived, and hath Heirs Males of his body, and until the Earldom of A. doth come unto him; so as by the death of Duke Thomas without Issue, the Trust to Henry, which was but a limited Trust, is now determined and vanquished as to Henry.

As this was a contingent trust in Henry, but in Case Tho. was alive, and had issue when the term was to begin, so the conti∣nuance and duration of the trust of the term, was but to last

until the Earldom came unto him; and it is the stronger, for that this trust ends in Henry by way of Limitation.

* 1.23How long shall Henry and his Issue have this Trust?

* 1.24Until Thomas die without Issue Male, and the Earldom of A. come unto him, both which hath happened, so as the trust for Henry and his Issue is ended by way of limitation, and is now disposed over to others, as it may well be so, as this is a new Trust that by a contingent subsequent Declaration takes away the Trust from Henry, and settles a new Trust in the younger Children; and it is to be considered, that Henry is to have the Trust of this term, not so long as he shall have Issue, but so long as the Lord Maltravers shall have Heirs Male, so as that makes it a collateral Limitation or Determination of the said Estate.

4. The Equity and Justice of this Trust carries much weight with me, and that condition the Lord Maltravers was in: It was fit to settle the Trust in Henry, so long as the Lord Mal∣travers had Heirs Male of his body, and if they failed, and that the Earldom of A. and great accession of Estate to come to Henry, it was a great reason that the younger Children should be provided for and taken notice of.

And it will not be easie to blow off and overthrow a Trust in a Court of Equity, contrary to the express mind and in∣tention of him that made it, for the provision of they younger Children, especially it being made with so much Justice and Reason, wherein he hath both a respect for his Honours Fami∣ly and younger Children.

* 1.25There is no Objection against all I have said, which seems prima facie to carry weight with it; and that is, when the le∣gal interest is come to Henry, and he is Tenant intail in posses∣sion, and suffers a common Recovery, and bars all the Remain∣ders Intail.

* 1.26How can this trust which is an Accessary follow Estates?

* 1.27To which I answer first, If the Trust had been to follow and wait upon the Estate, this Objection had been the stron∣ger; but this trust is not absolutely to wait upon Henry's E∣state, but so long as Duke Thomas hath Heirs Male of his body, and until the Earldom of A. come to him, both which are happened, he continues still Tenant Intail, and yet this In∣terest is determined in the trusts.

Secondly, this is a future contingent Interest that now is happened to the younger Brothers, which cannot be barred, and it may be resembled to Pell and Brown's Case, 2 Cro. 590, 591.

A man demiseth his Land to his second Son Thomas and his Heirs, and if he die without Issue, leaving William his elder Brother, then William should have it in Fee; it was adjudged that this was a Fee Simple in Thomas the second. And though regularly one Fee cannot descend on another; yet this being a future contingent Interest that the Devise of the Fee Simple to William his eldest Son.

Another great Question was, Thomas the second Son suffered a common Recovery, whether this did not bar the future con∣tingent possibility of William?

And it was adjudged it did not.

Now here is as much a future contingent possibility of a Trust, as there was of an Estate and more, and therefore there is much reason that the future contingent possibility of a Trust should not be barred by a common Recovery, as in that Case. And as to that which is said, that an Accessary cannot be without a substance, and the Estates of the younger Children is to suc∣ceed, and yet they have no proper Estate, for Henry is now Tenant, so as this is a personal trust for the younger Chil∣dren independent of their Estates; and if so, then clearly this Recovery cannot bar their Estates.

Another reason why a Court of Equity should help and in∣terpose in this Case, may be, because the Estate for years was conveyed by Marriot in breach of the Trust, which a Court of Equity ought to maintain and support as much as they can.

First, Because Marriot and the now Duke are not Purchasers for a valuable Consideration.

Secondly, They came in with privity and had notice of the Trust.

And I conceive may and will, notwithstanding these Acts, make good these Trusts for the younger Children; and if this be a new doubtful Case, certainly I conceive it is the surest and safest way for a Court of Equity to make good the inten∣tion of him that made it, and to preserve the Trust for the younger Children.

William Ellis

26 Feb. 1677.

Notes

• * 1.1

  20 Martii. 1647.
• * 1.2

  21 Martii 1647.
• * 1.3

  21 Martii 1647.
• * 1.4

  20 Novemb. 1675.
• * 1.5

  1 Dec. 1675
• * 1.6

  24 Octob. 1675.
• * 1.7

  25 Octob. 1675.
• * 1.8

  Nov. 1677.
• * 1.9

  Query.
• * 1.10

  Serjeant P—ton's opinion 26 Dec. 1677.
• * 1.11

  Serj. M—d's opinion 28 Dec. 1677.
• * 1.12

  Sir William Jone's opi∣nion 20 Jan. 1677.
• * 1.13

  Sir William Jones's opi∣nion 30 Oct. 1680.
• * 1.14

  Serj. M—d's opinion 20 Nov. 1680.
• * 1.15

  Mic. 17. Jac. R. B.
• * 1.16

  Mic. 20. Jac.
• * 1.17

  Opinions and Considerati∣ons for the younger Bro∣thers. Sir J. C—.
• * 1.18

  Sir R. S.
• * 1.19

  Mr. Offley.
• * 1.20

  Sir W. Ellis.
• * 1.21

  Serj. M—d for the Bro∣thers.
• * 1.22

  Sir W. Ellis.
• * 1.23

  Query.
• * 1.24

  Answ.
• * 1.25

  Obj.
• * 1.26

  Query.
• * 1.27

  Answ.