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

De Termino S. Hill. Anno Reg. Car. 2d Regis XXXIII & XXXIV Anno Dom. 1681. Mar∣tis 24 die Jan. in Curia Cancellarii.

Howard, versus Le Duc de Norfolk, & al.

THis day being appointed for Judgement in this Cause, the three Judges assisted the Lord Chancellor at the hearing, viz. the Lord Chief Justice Pemberton, the Lord Chief Justice North, and the Lord Chief Baron Montague, came into the Court of Chancery, and delivered their Opinions Seriatim, beginning with the Lord Chief Baron Montague, and so up∣wards; after whom the Lord Chancellor also delivered his O∣pinion: The sum of all the Arguments, as near as could be taken, were as followeth.

The Argument of the Lord Chief Baron Montague.

Charles Howard is Plaintiff, and the Duke of Norfolk and others are Defendants. The Plaintiff by his Bill seeks to have Execution of a Trust of a term of 200 years of the Ba∣rony of Grastock, which was made by Henry Frederick Earl of Arundel, and upon the Bill, Answers, Deeds, and other Passa∣ges in this Cause contained, is this:

Henry Frederick Earl of Arundel by Lease and Release of the 20th and 21th of March, 1647. did settle the Barony of Grastock and of Burgh, and several other Lands to himself for Life, then to the Countess Elizabeth his Wife for life, and then there is a term created for 99 years (which we need not mention in this Case, because it is determined) and af∣ter the death of the Countess, there is a term for years limited to my Lord of Dorchester and other Trustees for 200 years, under a Trust to be declared in a Deed of the same date, with the Release and the limitation of the Inheritance, after this term of 200 years, is first to Henry Howard now Duke of Norfolk and the Heirs Males of his Body, then to Mr. Charles Howard the now Plaintiff, Brother of the said Henry, and so to all his Brothers successively intail Male, with the last Remain∣der to the Earl of and his Heirs, then by a Deed 21 of March 1647, the Earl declares the Trust of the term of 200

years, reciting first the uses of the former Deed, and therein says, it was intended that the said term should attend the In∣heritance, and the Profits of the Barony of should be recei∣ved for 200 years by Henry Howard now Duke of Norfolk and the Heirs Males of his body, so long as Lord Thomas eldest son of the said Earl of Arundel, or any Issue Male of his bo∣dy should be living; but in case he should die without Issue Male in the life of Henry Howard, not leaving his Wife en∣sient with a Son, or in case after the death of Thomas with∣out Issue Male, the Honour of the Earldom of Arundel should descend to Henry Howard, then he and his Issues to have no be∣nefit of this term of 200 years, but it was to descend to the other Brother Charles Howard the now Plaintiff as hereafter is mentioned; and then comes Now this Indenture witnesseth, and therein the Earl declares that it should be under the Limita∣tions after specified (viz.) if Thomas Lord Howard had any Issue Male or Heirs Male of his body (living Henry Howard) then the Trustees should have the commencement of the term in trust for the said Henry Howard and the Heirs Males of his body, till such time as the Earldom should come to Henry How∣ard, by the death of Thomas without Heirs Males of his body, and after to the other Brothers successively, and the Heirs Males of their bodies; and then doth divide the other Man∣nors with cross Remainders to the five Brothers, then the Case goes on thus, the Earl of Arundel dies in time in 1652, Elizabeth the Countess dies in 1673, then in 1675, my Lord of Dor∣chester the surviving Trustee, assigns the Term to one Marriot, he assigns it to the now Duke of Norfolk, and the Duke the 24th of Octob. 1675, by Bargain and Sale makes a Tenant to the Precipe, and then a Recovery is suffered, and the Uses of that Recovery 25th of October are declared to be to the Duke and his Heirs. Then Thomas Howard the former Duke died without Issue, having never been married, and that is in the year 1677, whereby the Honour came to the now Duke, and so the Plaintiffs Bill is to have execution of the Trust of the term of the Barony of to the use of himself and the Heirs Males of his body. This I conceive was opposed by the Counsel for the Defendant upon these grounds.

1. That by the Assignment made by Marriot to my Lord Duke Henry, the Term was surrendred and quite gone.

2. The second ground was the common Recovery suffer∣ed, which they say barred the remainders which the other Bro∣thers had, and so also would be a bar to the Trust of this term.

3. And the other ground was, that the Trust of a term to Henry and the Heirs Males of his body, until by the death of Thomas without Issue, the Earldom should descend upon him, and then to Charles, is a void Limitation of the Remain∣der.

As to the first, that by the assignment of Marriot to Henry Howard, the whole Term was surrendred; and being so sur∣rendred, hath no existance at all that I find, but was barely mentioned, and I think cannot be stood upon; for this the term by the surrender is gone indeed and merged in the Inhe∣ritance, yet the Trust of that term remains in Equity; and if this Trust be destroyed by him that had it assigned to him, this Court has full power to set it up again, and to decree the term to him to whom it did belong, or a recompence for it; there∣fore I think that stands not at all as a point in the Case, or as an objection in the way.

As to the next thing, the common recovery now suffered by the now Duke, that doth bar the remainders to the other Bro∣thers: And so also the trust of this term, that I conceive, to be so in case this can be interpreted to be a term to attend the In∣heritance; and indeed in the reciting part, the Deed doth seem to say, that it was intended to attend the Inheritance. But by that part of the Deed which followeth after (now this Indenture witnesseth) there it is limited, that the term should be to Henry Howard and the Heirs Males of his body, until such time as the Honour of the Earl of Arundel by his elder Brothers death without Issue, should come to him; then to the Plaintiff, which doth convey the Estate of the term in a dif∣ferent Channel, from that in which the Inheritance is setled; and taking this Deed altogether, it doth limit this term in such various Estates, that it can no way be construed to be a term attending the Inheritance; and then, I conceive, the recovery doth not bar the trust, for the recovery would bar the inci∣dent to any Estate, as this would do here, if it attended the In∣heritance; but being onely a term in Gross, and a collateral thing, I conceive the recovery has no operation to bar the trust in the term. Then the Case singly depends upon the third point whether the Trust of a term thus limited to Henry Howard and the Heirs Males of his body, until his Brother die without Issue, whereby the Honour came to him with such contingent Remainders over, be a good Limitation, this is the Question and so in short the Case is but thus: A Term of Two Hundred years is granted in trust, that Henry How∣ard and the Heirs Males of his body shall receive the Pro∣fits

until Thomas die without Issue Male of his body, and then to Charles Howard, and the Heirs Male of his body: And in this case, I am of Opinion, that these Limitations to the youn∣ger 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 set∣led, therefore it were in vain to tell you the steps taken to∣wards 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 Li∣mitation 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 Remain∣der 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 Li∣mitation to one and the Heirs Males of his body is a full di∣sposition 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 re∣solved, that the Devise of a Term in such a manner with Li∣mitations after one another, to make a perpetuity, cannot be good: For, says the Book, to limit a possibility, and to li∣mit the Remainder of a term, after a dying without Issue, stands not with the Rules of Law. Now to bring this Case with∣in 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 up∣on, 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 de∣scend 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 E∣state 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 Li∣mitation 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 reso∣lution. It is as possible a disposition of the Term during the continuance of an Intail as the other, and therefore no Re∣mainder 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 Li∣mitation

to Thomas. And after it came into the Exchequer-Chamber, and there, by the Opinion of ten Judges, it was af∣firmed, 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, a∣gainst 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 Contingen∣cy 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 late∣ly 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 Daugh∣ters, 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 Issue, the Daughters his Execu∣trixes, 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 Disposi∣tions 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 Con∣tingency, 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 be∣tween 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 mar∣riage take effect; but the qualifying of a disposition of a Term cannot be, because when once a Term is given, the qua∣lification 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 bo∣dy, upon a Contingency, to happen first with Limitations o∣ver, 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 Re∣ports, 258 and 274, Trinit. 1651, fol. 258. 'Tis 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 Perpe∣tuity, which the Law will not admit; but if it be upon a con∣tingent 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 ad∣mit 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 inten∣ded 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 Con∣tingency is no ground to judge.

The Limitation good upon it was not good, if the other Li∣mitation 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 Defen∣dants.

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 Reco∣very, in case this being not a good Limitation in point of Cre∣ation, 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 suf∣fer 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 sur∣render 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 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 pro∣tect 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 at∣tend 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 Re∣mainder to the right Heirs of A. A. had no Son at that time living, nor after; but the Remainder over was to the Daugh∣ter 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 with∣out 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 De∣cree 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 E∣state-tail.

The Question then is, whether there can be any contigent Remainder for this, for this Case depends upon that considera∣tion; 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 o∣ver, there can be no such Remainder limited at all, and there∣fore 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 'tis here to Henry Howard and the Heirs of his body; and if he die without Issue in the life of Henry, &c. then the Re∣mainder 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 un∣der 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 Li∣mitation 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 in∣deed; 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, where∣by 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 Remain∣der 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 fur∣ther, then let the Contingency have been what it would, that were to happen in his life, if complicated with several ascen∣dents, 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 du∣ring 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 am of opinion it fails in point of Limitation, and ought to be decreed for the Defen∣dant.

The Lord Chief Justice Pemberton's Opinion.

I Need not trouble your Lordship with opening the Case, the truth is, it is in short no more than thus: My Lord Duke of Norfolk's Father, the Earl of Arundel, having created an Estate for 200 years, and setled the Inheritance by one Deed Intail to himself for life; and after to his Lady for life; and then to his Son and the Heirs Males of his body; and for default of such Issue, to the other Son Charles, and the Heirs Males of his body, with several Remainders over. Then by another Deed, he does declare the Trusts of this term of 200 years, which being to Henry and the Heirs Males of his body, till my Lord Maltravers die without Issue Male, and the Earldom descend to my now Lord Duke; and after the de∣termination of that Estate, if he shall die without Issue Male, then to come to Charles and the Heirs Males of his body, whether this be a good Remainder to Charles is the Question. For as to any thing of the Recovery or the Assignment, I shall put it quite out of the Case, and do not think it will have a∣ny influence upon the Case as it lies before us. And indeed I do first think that the Earl of Arundel did certainly design, that if my Lord Maltravers should die without Issue Male, whereby the Honour of the Family should come to my Lord Duke that now is, Charles should have this Estate; and his in∣tentions are manifest by creating this Term, which could be of no other use but to carry over this Estate to Charles a younger Son, upon the elder Sons dying without Issue. And I do think truly that this was but a reasonable Intention of the Father; for there being to come with the Earldom a great Estate that would so well support it, it was reason, and the younger Sons might expect it, that their Fortunes might be somewhat advan∣ced by their Father in case it should so happen. It was a rea∣sonable expectation in them; and truly I think it was the plain intention of the Earl. And there is no great question but it might have been made good and effectual by the limitation of two Terms; For if one Term had been limited to determine upon the death of Thomas without Issue, and that to be for the now Duke of Norfolk, and another Term then to com∣mence and go over to Charles, that would certainly have

been good, and carried the Estate to Charles upon that Con∣tingency; but as this Case now is, I do think that this way that is now taken is not a good nor a right way; for I take this Limitation to Charles to be void in Law. And as to that, I know there is a famous difference of limiting Terms that are in Gross, and Terms that attend the Inheritance. As to Terms that are in Gross, I think it will be granted (because it hath been setled so often) they are not capable of limita∣tion to one after the death of one without Issue; for so are all the Cases that have been cited. I think further, it is as clear, that upon Terms attendant upon an Inheritance, there may be such a Limitation, to wit, that a Term that waits upon an Inheritance after the death of one without Issue, may go over to another: But then it is capable of such a Limita∣tion in that Case, with this restriction; that is, if the Inhe∣ritance be so limited; for though it be attendant ever so much upon the Inheritance, yet that attendance cannot make it ca∣pable of another Limitation than that Inheritance is capable of: For if I have an Estate in Fee-simple, and have the Trust of a term attendant upon that, and I will let the Estate of Inheritance descend to my Son, I cannot in this case (though the Term be attendant) limit it, that if my Son die with∣out Issue, that Term shall go over; it is not capable of any Forreign Limitation whatsoever; for as to that, it is a Term in Gross, it hath not the quality of a Term attendant upon the Inheritance at all; for first, it would fail of an Inheri∣tance, and a Free-hold to support it, and further than a Term can be supported with a like Estate of Inheritance; It will fail to be a Term attendant upon the Inheritance. Now here the Estate of Inheritance is limited to Henry and the Heirs Males of his body, with Remainders to Charles and the Heirs Males of his body. Now thus the Term is capable of a Li∣mitation to Henry and the Heirs Males of his body. And for want of such Issue, to Charles and the Heirs Males of his body, because it hath an Inheritance, on which it depends, to go along with it and support it. But to take this out of its right Course and Channel, and put another Limitation upon it: That upon the dying of Thomas without Issue, whereby the Earldom shall descend, this shall go over to Charles; alas it cannot be, because it hath no Free-hold or In∣heritance to support it.

And then besides, it could not have that reason that the Law intends for its permitting such Limitations to Terms at∣tending

the Inheritance; for I take it, the reason why Terms are admitted to be attendant upon the Inheritance, and to be capable of Limitations to go along with the Inheritance, is their relation they have to the Inheritance; and because it is for the benefit of the Inheritance, and that I conceive was the onely reason that at first guided these Judgements of the Court of Chancery, that these Terms should be admitted to wait upon the Inheritance to protect it when Mortgages were made in former times by Feoffments, upon condition of payment of money, we hear of none of these Terms. But in the latter part of Queen Elizabeth's time, and since, the way of limiting Terms in Mortgages came up in use, and then upon the buying of Inheritances came in the Trust of these terms; and they that purchased were advised to keep those Terms on foot, to protect their purchased Inheri∣tance.

I must look upon this indeed as a new Case of Novel in∣vention; for in truth I think, in truth, it is Prima Impressionis, and none of the former Cases have been exactly the same: For this Term here does partake somewhat of a Term in Gross, and somewhat of a Term attendant upon an Inheri∣tance; and if there should be such a Limitation admitted, such a forreign Limitation as this is, (I call it Forreign, because it is not that which goes along with the Inheritance.) If that be allowed, we know not what inventions may grow upon this; for I know mens Brains are fruitful in inventions, as we may see in Matthew Manning's Case. It was not foreseen nor thought when that Judgement was given, what would be the Consequence when once there was an Allowance of the Limitation of a Term after the death of a person, pre∣sently it was discerned, there was the same reason, for after twen∣ty 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 incum∣ber 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 li∣mited to a man and his Heirs Males of his body, with Re∣mainders over, and a Term was limited accordingly to wait

upon the Inheritance. In that Case, he that had the first E∣state-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 car∣ry 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 Plain∣tiff 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 Inheri∣tance: 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 a∣gain. 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 Inhe∣ritance, it is such an Estate as the Law cannot allow of, but void in Limitation and Creation; and so I take it the Plain∣tiffs Bill ought to be dismissed.