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

THE Lord Chancellor NOTTINGHAM'S ARGUMENTS.

The First Argument.

THIS is the Case. The Plaintiff, by his Bill de∣mands 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 Ka∣tharine: Thomas Lord Maltravers, his eldest Son was Non com∣pos Mentis, and care is taken to settle the Estate and Family, as well as the present circumstances will admit. And there∣upon 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 Mar∣quess of Dorchester, Edward Lord Howard of Eastcricke, and Sir Thomas Hatton, of the other part: it bears date the Twen∣ty 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 prepa∣rations 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 conse∣quently only during his own life, because he was never likely to Marry) and if he dye without Issue in the life-time of Hen∣ry, 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 pre∣sence 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: present∣ly upon this the Marquess of Dorchester, the surviving Trustee of this Estate, assigns his Estate to Marryot, but he doth it up∣on 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 re∣new 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 palpa∣ble 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 on∣ly be avoided by the Assignment of Marryot, with the concur∣rence of the Duke of Norfolk, he having notice of the Trusts, then most certainly they must make it good to Charles in Equi∣ty, for a palpable Breach of Trust of which they had notice. So that the question is reduced to this main single point, Whe∣ther 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 de∣termination 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, ac∣cording 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 Con∣sequences 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 Que∣stion. Now, first, these things are plain and clear, and by ta∣king 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 Contin∣gency, 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 Proper∣ty in Chancery, other than that which is the Rule of Proper∣ty 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 can∣not 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 con∣tingency never happen, yet that Remainder is void, tho' there were never a Son then born to him; for that looks like a per∣petuity, and this was Sir William Backhurst his Case in the 16. of* 1.1 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 Remain∣ders* 1.2 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 with∣out 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, successive∣ly, and all the persons in esse, and alive at the time of the Li∣mitation of their Estates, these tho' they look like a possibility upon a possibility, are all good, because they produce no in∣convenience, they were out in a little time with an easie inter∣pretation, 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* 1.3 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 resol∣ved 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 contin∣gency 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* 1.4 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, e∣very 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 Para∣mour's and Yardley's Case in the Commentaries where it was ad∣judged a good Devise, though it were a possibility upon a possibility.

These Conclusions, which I have thus laid down, are but Preliminaries to the main Debate. It is now fit we should come to speak to the main Question of the Case, as it stands upon its own Reason, distinguished from the Reasons of these Preliminary; and so the Case is this.

The Trust of a Term for Two Hundred Years is limited to Henry in Tail, provided if Thomas die without Issue in the life of Henry, so that the Earldom shall descend upon Henry, then to go to Charles in Tail; and whether this be a good Limitati∣on to Charles in Tail, is the Question; for most certainly it is a void Limitation to Edward in Tail, and a void Limitation to the other Brothers in Tail: But whether it be good to Charles is the doubt, who is the first taker of this Term in gross; for so it is (I take it) now become, and I do under favour, differ from my Lord Chief Justice in that point; for, if Charles die, it will not return to Henry; for that is my Lord Cook's error in Leonard Loveis's Case: for he says, That if a Term be devised to one* 1.5 and the Heirs Males of his Body, it shall go to him or his Exe∣cutors, no longer than he has Heirs Males of his Body; but it was resolved otherwise in Leventhorp's and Ashby's Case, 11. Car. B. R. Rolls Abridgment, Title Devise, fol. 611. for these Words are not the Limitation of the time, but an absolute dis∣position of the Term.

But now let us, I say, consider whether this Limitation be good to Charles or no. It hath been said.

Obj. 1. It is not good by any means; for it is a possibility upon a possibility.

Answ. That is a weak Reason, and there is nothing of Ar∣gument in it, for there never was yet any Devise of a Term with Remainder over, but did amount to a possibility upon a possibility, and executory Remainders will make it so.

Obj. 2. Another thing was said, it is void, because it doth not determine the whole Estate, and so they compare it to Sir Anthony Mildmay's Case, where it is laid down as a Rule, that every Limitation or Condition ought to defeat the intire E∣state, and not to defeat part, and leave part not defeated; and it cannot make an Estate to cease as to one person, and not as to the other. But,

Answ. I do not think, that any Case or Rule was ever worse applied than that to this; for if you do observe this Case, here is no Proviso at all annexed to the legal Estate of the Term, but to the equitable Estate, that is built upon the legal Estate unto the Estate to Henry, and the Heirs Males of his Body, to attend the Inheritance with a Proviso, If Thomas die without Issue in Henry's life, and the Earldom come to Henry, then to Charles: which doth determine the Estate to Henry and his Issue; but the other Estate given to Charles doth arise upon this Pro∣viso, which makes it an absurdity to say, that the same Provi∣so, upon which the Estate ariseth, should determine that E∣state too.

Obj. 3. The graet matter objected is, It is against all the Rules of Law, and tends to a perpetuity.

Answ. If it tends to a perpetuity, there needs no more to be said, for the Law has so long laboured against perpetuities, that it is an undeniable Reason against any settlement, if it can be found to tend to a perpetuity.

Therefore let us examine whether it do so, and let us see what a Perpetuity is, and whether any Rule of Law is broken in this Case.

A perpetuity is the settlement of an Estate or an Interest in Tail, with such Remainders Expectant upon it, as are in no sort in the power of the Tenant in Tail in possession, to dock by any Recovery or Assignment, but such Remainders must continue as perpetual clogs upon the Estate: such do fight against God, for they pretend to such a stability in hu∣man Affairs, as the nature of them admits not of, and they are against the Reason and the policy of the Law, and therefore not to be endured.

But on the other side, future Interests, springing Trusts, or Trusts Executory, remainders that are to emerge and arise upon Contingencies, are quite out of the Rules and Reasons of Perpetuities, nay, out of the reason upon which the Policy of the Law is founded in those Cases, especially, if they be not of remote or long consideration; but such as by a natural and easie interpretation will speedily wear out, and so things come to their right Channel again.

Let us examine this Rule with respect to Freehold-Estates, and see whether there it will amount to the same Issue.

There is not in the Law a clearer Rule than this, that there can be no Remainders limitted after a Fee simple, so is the ex∣press Book: Case 19 Hen. 8. in my Lord Dyer; but yet the nature of things, and the necessity of commerce between Man and Man, have found a way to pass by that Rule, and that is thus; either by way of Use, or by way of Devise: There∣fore if a Devise be to a Man and his Heirs, and if he dye without Issue in the life of B. then to B. and his Heirs: this is a Fee simple upon a Fee simple, and yet it has been held to be Good.

My Lord Chief Baron did seem to think, that this Resolu∣tion* 1.6 did take its Original from Pells and Brown's Case; but it did not so, the Law was setled before; you may find it ex∣presly resolved 19 Eliz. in a Case between Hinde and Lyon,* 1.7 3. Leonard. Which, of the Books that have lately come out, is one of the best; and it was there adjudged to be so good a limitation, that the Heir who pleaded riens peer descent was forced to pay the Debt, and it had the concurrence of a judg∣ment in 38 Eliz. grounded upon the Reason of Wellock and Hammond's Case cited in Beraston's Case, where it is said, Crooke, Eliz. 204. in a devise it may well be, that an Estate in Fee shall cease in one, and be transferred to another: all this was before Pells and Brown's Case, which was in 18 Jac. It is true, it was made a Question afterwards in the Serjeants Case; but what then? We all know that to be no Rule to judge by; for what is used to exercise the Wits of the Serjeants, is not a governing Opinion to decide the Law. It was also adjudged in Hil. 1649. when my Lord Rolls was Chief Justice, and a∣gain in Mich. 1650. and after that indeed in 1651. it was re∣solved otherwise in Jay and Jay's Case: but it has been often agreed that where it is within the compass of one Life, that the Contingency is to happen, there is no danger of a perpe∣tuity. And I oppose it to that Rule which was taken by one of the Lords the Judges, That where no Remainders can be

limited, no contingent Remainder can be limited, which I utterly deny, for there can be no Remainder limited after a Fee simple, yet there may a contingent Fee simple arise out of the first Fee, as hath been shewn.

Thus it is agreed to be by all sides in the Case of an Inheri∣tance; but now say they, a Lease for Years, which is a Chat∣tel, will not bear a contingent Limitation in regard of the poverty and meanness of a Chattel Estate. Now as to this point, the difference between a Chattel and an Inheritance is a difference only in Words, but not in substance, nor in Reason, or the Nature of the thing: for the owner of a Lease has as absolute a power over his Lease, as he that hath an Inheritance has over that. And therefore where no perpetuity is introdu∣ced, nor any inconveniency doth appear, there no Rule of Law is broken.

The Reasons that do support the springing Trust of a Term as well as the springing use of an Inheritance, are these.

1. Because it hath hapned sometimes, and doth frequently, that Men have no Estates at all, but what consist in Leases for Years: Now it were not only very severe, but (under favour) very absurd, to say that he who has no other Estate but what consists in Leases for Years, shall be incapable to provide for the Contingencies of his own Family, tho' these are directly within his view and immediate prospect. And yet if that be the Rule, so it must be; for I will put the Case; A Man that hath no other Estate but Leases for Years, Chattels real, treats for the Marriage of his Son, and thereupon it comes to this agreement: These Leases shall be setled as a Joynture for the Wife, and provision for the Children: says he, I am content, but how shall it be done? Why thus; You shall assign all these Terms to John a Styles, in Trust for your self and your Execu∣tors, if the marriage take no effect; But then, if it takes effect, to your Son while he lives, to his Wife after while she lives, with Remainders over. I would have any one tell me whe∣ther this were a void limitation upon a Marriage settlement; or if it be, what a strange absurdity is it, that a Man shall settle it if the Marriage take no effect, and shall not settle it if the Marriage happen:

2. Suppose the Estate had been limited to Henry Howard and the Heirs Males of his Body, till the death of Thomas with∣out Issue, then to Charles, there it had been a void limitation to Charles: if then the addition of those words, If Thomas dye without Issue in the life of Henry, &c. have not mended the mat∣ter,

then all that addition of Words goes for nothing, which it is unreasonable and absurd to think it should.

3. Another thing these is, which I take to be unanswerable, and I gather it from what fell from my Lord Chief Justice Pemberton; and when I can answer that Case, I shall be able to answer my self very much for that which I am doing. Sup∣pose the Provisoe had been thus penned, And if Thomas die without Issue Male, living Henry, so that the Earldom of Arun∣del descend upon Henry, then the Term of 200 Years limited to him and his Issue, shall utterly cease and determine, but then a new Term of 200 Years shall arise and be limited to the same Trustees, for the Benefit of Charles in Tail. This he thinks might have been well enough, and attained the end and in∣tention of the Family, because then this would not be a Re∣mainder in Tail upon a Tail, but a new Term created.

Pray let us so resolve Cases here, that they may stand with the reason of Mankind, when they are debated abroad. Shall that be reason here that is not reason in any part of the World besides? I would fain know the difference, why I may not raise a new springing Trust upon the same Term, as well as a new springing Term upon the same Trust; that is such a chicanery of Law as will be laught at all over the Christian World.

4. Another Reason I go on is this; That the meanness of the consideration of a Term for years, and of a Chattel Inte∣rest, is not to be regarded: for whereas this will be no reason any where else; so I shall shew you, that this Reason, as to the Remainder of a Chattel Interest, is a Reason that has been exploded out of Westminster-Hall. There was a time indeed that this Reason did so far prevail, that all the Judges in the time of my Lord Chancellor Rich, did 6 Edvardi 6 deliver their Opinions, That if a Term for Years be devised to one, provi∣ded,* 1.8 that if the Devisee die, living J. S. then to go to J. S. that remainder to J. S. is absolutely void, because such a Chattel Interest of a Term for Years is less than a Term for Life, and the Law will endure no limitation over. Now this being a Reason against Sense and Nature, the World was not long governed by it, but in 10 Eliz. in Dyer, they began to hold* 1.9 the Remainder was good by Devisee; and so 15 Eliz. seems too, and 19 Eliz. it was by the Judges held to be a good Remain∣der; and that was the first time that an executory Remainder* 1.10 of a Term was held to be good. When the Chancery did begin to see that the Judges of the Law did govern themselves by the reason of the thing, this Court followed their Opinion, the better to fix them in it, they allowed of Bills by the remain∣der

Man, to compel the Devisee of the particular Estate, to put in security that he in Remainder should enjoy it according to the Limitation. And for a great while so the practice stood, as they thought it might well, because of the Resolution of the Judges, as we have shewn: but after this was seen to multiply the Chancery Suits, then they began to resolve that there was no need of that way, but the executory Remainder Man should enjoy it, and the Devisee of the particular Estate should have no power to bar it. Men began to presume upon the Judges then, and thought if it were good as to Remainders after E∣states for Lives, it would be good also as to Remainders upon Estates Tail: That the Judges would not endure, and that is so fixed a Resolution, that no Court of Law or Equity ever at∣tempted to break in the World. Now then come we to this Case, and if so be where it does not tend to a perpetuity, a Chattel Interest will bear a Remainder over, upon the same Reason it will bear a Remainder over upon a Contingency, where that Contingency doth wear out within the compass of a life, otherwise, it is only to say, it shall not, because it shall not: For there is no more inconvenience in the one than in the other.

Come we then at last, to that which seems most to choak the Plaintiffs Title to this Term, and that is the resolution in Child and Baylie's Case: For it is upon that Judgment, it seems, all Conveyances must stand or be shaken, and our Decrees made. Now therefore I will take the liberty to see what that Case is, and how far the Opinion of it ought to prevail in our Case.

1. If Child and Baylie's Case be no more than as it is report∣ed by Rolls, part. 2. fol. 129. then it is nothing to the purpose: A Devise of a Term to Dorothy for life, the remainder to William, and if he dies without Issue, to Thomas, without saying, in the life of Thomas; and so it is within the common Rule of a Li∣mitation of a Term in Tail, with Remainder over, which cannot be good.

But if it be as Justice Jones has reported it, fol. 15, then it is as far as it can go, an Authority: For it is there said to be, living Thomas. But the Case, under favour, is not altogether as Mr. Justice Jones hath reported it neither; for I have seen a Copy of the Record upon this account; and, by the way, no Book of Law is so ill corrected, or so ill printed as that.

The true Case is, as it is reported by Mr. Justice Crook; and with Mr. Justice Crooks Report of it, doth my Lord Rolls agree,* 1.11 in his abridgment, Title Devise, 612. There it is, a Term of

76 Years is devised to Dorothy for life, then to William and his As∣signs all the rest of the Term, provided if William die without Issue then living, then to Thomas; and this is in effect our pre∣sent Case; I agree it. But that which I have to say to this Case is.

First, It must be observed, that the Resolution there, did go upon several Reasons, which are not to be found in this Case.

1. One Reason was touched upon by my Lord Chief Baron, That William having the Term, to him and his Assigns, there could be no Remainder over to Thomas, of which Words there is no notice taken by Mr. Justice Jones.

2. Dorothy the Devisee for life, was Executrix, and did assent and grant the Lease to William, both which Reasons my Lord Rolls doth lay hold upon, as material, to govern the Case.

3. William might have assigned his Interest, and then no Re∣mainder could take place, for the Term was gone.

4. He might have had Issue, and that Issue might have assign∣ed, and then it had put all out of doubt.

5. But the main Reason of all, which makes me oppose it, ariseth out of the Record, and is not taken notice of in either of the Reports of Rolls, or Jones, or in Rolls Abridgment. The Record of that Case goes farther, for the Record sayes; There was a farther Limitation upon the death of Thomas without Issue to go to the Daughter, which was a plain affectation of a perpetuity to multi∣ply Contingencies. It farther appears by the Record, that the Fa∣thers Will was made the 10 of Eliz. Dorothy the Devisee for life, held it to the 24, and then she granted and assigned the Term to William, he under that Grant held it till the 31 of Eliz. and then regranted it to his Mother, and dyed; the Mother held it till the 1 of K. James, and then she dyed; the Assignees of the Mother held it till 14 Jac. and then and not till then did Thomas, the younger Son, set up a Title to that Estate; and before that time it appears by the Record, there had been six several Alie∣nations of the Term to Purchasers, for a valuable Considerati∣on, and the Term renewed for a valuable Fine paid to the Lord. And do we wonder now, that after so long an acquies∣cence as from 10 Eliz. to 14 Jacob, and after such successive Assignments and Transactions, that the Judges began to lye hard upon Thomas, as to his Interest in Law, in the Term, espe∣cially when the Reasons given in the Reports of the Case, were legal Inducements to guide their Judgments, of which there are none in our Case? But then,

Secondly, At last, allowing this Case to be as full and direct an Authority as is possible, and as they would wish, that rely upon it; then I say—

1. The Resolution in Child and Balie's Case, is a Resolution that never had any Resolution like it before nor since.

2. It is a Resolution contradicted by some Resolutions, and to shew, that that Resolution has been contradicted, there is—

1. The Case of Cotton and Heath, which looks very like a contrary Resolution, there is a Term limited to A. for eighteen years, the Remainder to B. for life, the Remainder to the first Issue of B. for life, this Contingent upon a Contingent was al∣lowed to be good, because it would wear out in a short time. But

2. To come up more fully and closely to it, and to shew you, that I am bound up by the Resolutions of this Court, there was a fuller and flatter Case 21 Car. 2. in July 1669, between Wood and Saunders. The Trust of a long Lease is limited and declar∣ed thus: To the Father for sixty years, if he lived so long; then to the Mother for sixty years, if she lived so long; then to John and his Executors if he survived his Father and Mother; and if he died in their life-time, having Issue, then to his Issue; but if he dye without Issue, living the Father or Mother, then the Remainder to Edward in Tail. John did die without Issue, in the life-time of the Father and Mother, and the question was, whether Edward should take this Remainder after their death, and it was Resolved by my Lord Keeper Bridgeman, being assi∣sted by Judge Twisden and Judge Rainsford, that the Remain∣der to Edward was good, for the whole Term had vested in John, if he had survived; Yet the Contingency never hapning, and so wearing out in the compass of two Lives in being, the Re∣mainder over to Edward might well be limited upon it.

Thus we see, that the same Opinion which Sir Orlando Bridge∣man held when he was a Practizer, and drew these Conveyan∣ces upon which the question now ariseth, remained with him when he was the Judge in this Court, and kept the Seals; and by the way, I think it is due to the Memory of so great a Man, whenever we speak of him, to mention him with great Rever∣ence and Veneration for his Learning and Integrity.

Object. They will perhaps say, Where will you stop, if not at Child and Balie's Case?

Ans. Where? why every where, where there is any Incon∣venience, any danger of a perpetuity; and where-ever you stop at the limitation of a Fee upon a Fee, there we will stop in the limitation of a Term of years. No man ever yet said, a De∣vise to a man and his Heirs, and if he die without Issue, living B. then to B. is a naughty Remainder, that is Pells and Browns Case

Now the Ultimum quod sit, or the utmost limitation of a Fee

upon a Fee, is not yet plainly determined, but it will be soon found out, if men shall set their Wits on work to contrive by Contingencies, to do that which the Law has so long laboured against, the thing will make it self Evident, where it is Incon∣venient, 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 al∣ways provided, that he should not Marry till he should reco∣ver 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 ven∣gance; it had need be so clearly void that it ought to be a pro∣digie 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 com∣mon 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 Judg∣ment 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 Opini∣ons as any man in the World shall.

If then this shall not be void, there is no need for the Mer∣ger 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 re∣main 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 pre∣sent thoughts are, that the Trust of this Term was well limi∣ted 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 so∣lemn 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 Lord∣ship 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 permit∣ted to argue some new matter if they can find any. There∣fore 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 present∣ly made publick, and tho' a Man doth not speak in Print, yet what he says shall be immediately put in Print; therefore be∣cause 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. There∣fore 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 preju∣dice of being contrary to that of the three Chief Judges) can be refuted, I am not ashamed to retract any error I may be convinced of, but truly at present, I see no colour to re∣tract it.

Mr. Serj. M. We pray then my Lord, that we may have this right done for us, who are for Mr. Howard the Plaintiff, that they on the other side, will let us know what particular points we must go upon, for if they come at large, we may not perhaps be so well provided to answer them.

Lord Chancellor, I suppose they can say nothing to any point, but that which is the main point in the Case the limitation of the remainder of a springing Trust after the Entail of a Term, that is, to determine upon a contingency that expired in the

time of a Life; a point which was never argued for Mr. How∣ard at the Bar, nor stirred by the Counsel.

Mr. Serj. M. I hope we for Mr. Howard, shall be heard to justify your Lordships Opinion.

Lord Chancellor, What hath been said here at the Bench on both sides, has been taken in Short-hand, and made publick, I know the Counsel on both sides hath seen it, or will see and look into it well, and if they can give me any reasonable sa∣tisfaction that I am in the wrong, I shall easily recede from it. But upon any thing yet offered, I am of the same mind I was. As to the Learned Judges that assisted me at the hearing the Decree is mine, and the Oath that Decree is made upon is mine, theirs is but Learned Advice and Opinion. And there∣fore if they can satisfy my Conscience, that they are in the right, and I not, well and good; if not, I must abide by that Decree I have made, according to my Conscience. And I will repeat this to you, I go upon these Heads for my Opini∣on, and I would be glad any body would answer them. I say it is against natural Justice, to say that a Man who hath no E∣state but what consists in Terms, shall be disabled from sett∣ling his Estate, so as to provide for the contingencies in his Family, that are in immediate prospect. I say it is a com∣mon Case. A Man that is less for Years, assigns his Term in Trust for himself, until such a Marriage take effect, and after to himself for Life, to his Wife for Life, with remainder in Tail to his Children. Is that springing Trust upon the con∣tingency of the Marriage good or not? If it be not good, then what will become of a great many Marriage settlements: If it be good, then why not in this Case as well as that. And I would fain know what difference there is between the Case as it is at the Bar, and if it had been limited thus, If my Lord Arundel had said, that if Thomas Die without Issue, Living Henry then the Term for 200 Years in Tail should cease, and a new Term should arise upon the same Trust for Charles, that it seems had been well enough; is there any sense in the World that can lead a reasonable Man to conclude why there should not be a new springing Term upon the same Trust. I cannot see any reason to run this Case down upon the single authority of Child and Baylie's Case, which was such a resolution, as ne∣ver had its like before, nor since, but contradicted by several resolutions as have been cited particularly, Wood and Saunders Case in this Court in my Lord Bridgmans time. These are the grounds my present apprehensions go upon, but I will hear Mr. Keck, if it may be in any reasonable time, and

give the respect to the Duke of Norfolk, that he shall not be surprized, tho' withall, I must do Mr. Howard the Justice that he be not eternally delaid.

Then the Day sevennight was appointed, but upon the continu∣ance of Mr. Kecks illness, it was put peremptorily for Judgment on the first Saturday in the next Term.

De Termino Trin. Anno Regis Car. II. 34 in Cancell. Howard vers. le Duc de Norfolk Sabbati 17 Junii. Anno Dom. 1652.

MY Lord, we have nothing to do in that* 1.12 Cause, but to pray your Judgment.

Mr. S. G. My Lord we were in great hopes to have had other Assistances to day, but it seems we are disappointed of them, That which I shall humbly offer is but short. We are by your Lordships favour permitted now to offer something if we can, to answer the objections which your Lordship made, and which were the ground of your Opinion. We did appre∣hend them to be these, that Child and Baylie's Case was not the same with this Case, and that the Case of Wood and Saunders, is the last resolution of this Nature, and will rule this. We do my Lord, humbly with submission offer these Reasons, why the first Case is the same with this, and the other difference from it. Child and Baylie's Case, my Lord, tho' it doth differ in some Circumstances, yet it differs in no one that doth imme∣diately concern the Limitation. For the Circumstances where∣in they Differ was the Length of the Term, being almost Ex∣pired, the Conveyances over to several Purchasers, and at the end of the Term the resolution taken. But tho' it differs in these Circumstances, yet these have no influence upon the Li∣mitation or the Construction of Law upon the Limitation. Now the Limitation is the same there as it is here, for there it is to one for Life, and to his Son during the whole Term, and if he die without Issue during the Life of his Father and Mo∣ther, then the remainder over this remainder was adjudged void. This is the same Case with ours, for in the Case the first remain∣der actually vested in William the Son for it was to him and his Assigns during the whole Term, and if he die without Issue

Living Father and Mother, then over. This remainder I say was adjudged void, he was actually seized of the whole Interest, which being vested in him, could not be devested upon the con∣tingent Limitations over, upon his death without Issue living Father and Mother. It is the same in our Case, the Duke of Norfolk has the Interest of this Estate by the Limitation in Tail actually vested in him, and then it cannot be devested by the rule of Child and Baylie's Case upon the Contingency of Thomas's dying without Issue in the Life of Henry, which is during the Life of the now Duke of Norfolk. And in this respect the Case of Wood and Saunders, is not the same. It is a Limitation to the Father and Mother for Life, and for 60 years, if they so long live, then to John the Son, if Living at the time of the Death of Father and Mother, the whole Term. My Lord, this was not a vesting the Estate in John the Son, but a Contingent Limi∣tation, that he should take or not. If he were Living at the time of the Death of Father and Mother, then he should take; If not, he should not take. There was no Interest vested in him till the Contingency hapned, and so the Limitations will be different. And that is the Ground that is drawn up in the De∣cretal Order of the Cause, because this was a Contingent Li∣mitation to John, and that never hapning, it is all one, as if it had never been limited, and amounts, putting the Contingent Li∣mitation, which never hapned out of the Case, to no more than a Limitation to the Father and Mother for Life, the remain∣der 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 Judg∣ment, and I know not whether it will become me to inter∣pose 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 encourage∣ment 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 settle∣ment is made, as a provision for the second Son of this Fami∣ly, 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 In∣tention

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 hap∣pen. 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 com∣pass of a life, or of a certain time that is to wear out in a reasonable distance, yet coming after a Limitation in Tail can∣not carry the remainder over. For if you once admit it du∣ring 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 twen∣ty 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 Con∣tingent 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 rea∣sonable 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 limi∣ted 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 with∣out 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 Mo∣ther, 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 o∣ver to a stranger would not be good, even admitting the Case of Wood and Saunders to be uncontroulable. Another Objecti∣on your Lordship made, was about the necessary Limitations of the Trusts of Terms by Termers upon Marriage Settle∣ments 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, whe∣ther it would be so or no. But suppose this Case, there be two Brothers, the Eldest hath no Children, the younger Bro∣ther hath a Son, and is a going to Marry the Son, but hath but a small Estate to give him. The Elder Brother he has a Term for Years, and has a mind to provide for the Son of his Younger Brother, and his intended Wife, and he limits the Trust of his Term thus to the use of himself, and his Exe∣cutors

till the Marriage be had, but if he die, or provided he die, before the Marriage had without Issue living, his Younger, Brother, the Father of him that is to be Married, then to the use of that Son, and so on. We do make a great doubt, whe∣ther the Limitation of the Trust of the Term there, would be good or not, upon the difference of Child and Baylies Case, that has been so often mentioned in this Cause, and was so so∣lemnly resolved. The resolution of which Case, and that al∣so of Wood and Saunders, we submit to your Lordships consi∣deration. As for the intention of the Parties in this settle∣ment, we cannot but say, it was intended as a provision, that when the Bulk of the Estate, and the Honour came to the Duke, his Younger Brothers should have an increase of their Portions. But it is as plain the intent does fail as to all the o∣ther Younger Children, because the construction of Law will not support it. So that the intent without the Rule of Law to maintain it, will signify nothing.

Mr. H. If your Lordship will please to give me leave, I think, I may offer something that has not yet been observed; We do not trouble your Lordship, or our selves out of a pre∣sumption, that we shall so far prevail, as to alter the Opinion your Lordship has delivered; but truly my design is to offer some reasons, why I hope your Lordship will be pleas'd to take some further consideration of the matter. Not, but that I know your Lordship did very seriously deliberate upon it, before you delivered your Opinion, and you have been plea∣sed to tell us the reasons you went upon, and they were two. First, upon the Case of Wood and Saunders in this Court: And Secondly, upon the natural Reason and Justice, that a Man that has no other Estate, but Terms for Years, should have a power to settle those Terms, so as to provide for the Contin∣gencies of his Family. That a settlement of a Term upon Trustees to himself, till the Marriage take effect, and then over, shall be good; this might be resembled to Pell and Browns Case, and so come within the same reason. Now my Lord, with submission, we have this to offer. This Trust of this Term in our Case, was first to attend the Inheritance, and that was an Estate Tail limited, but then there is a Contin∣gency added to this Trust, to this Trust of the Term, that if Thomas die without Issue, living Henry, then to Charles, and as it hath been said already, it is very plain this Entail of the Term did actually vest. Then the single first Question is, whether upon the Contingency hapning, the death of Duke Thomas without Issue, it shall devest, and a springing Trust

arise to the now Plaintiff Mr. Charles Howard. It is said there was a just care taken for him that was a Younger Son, so there was, but a like care was taken for the other five, Ber∣nard, &c. as well as for him. Now then the Case lies upon this doubt, with submission to your Lordship, whether this can enure by way of a springing Trust by a new Creation. We think that cannot be; for here being once an Estate Tail limited in a Term that was to attend an Estate Tail of the In∣heritance, the Remainder over must be void in the very Crea∣tion. My Lord, I have observed, ever since I have had the honor to practise at this Bar, and very many particular instances might be given, that when the Judges have been upon the Cases cal∣led to advise, here they would not go beyond, nor think fit that the Court would not go beyond, nor think fit that this Court should, beyond the Resolution in Mannings Case. And they have often said, if that Case were now to be adjudged, it would receive another kind of Resolution. The Judges gave that Resolution by way of Executory devise, and now I think, since that, there have been more Suits in this Court of this Nature since the King's Restauration, than were in forty Years before. For cunning People will be always finding out Per∣petuities, and are fond of Limitations tending to Perpetuities, not only in Inheritance, but in Terms for Years. After Man∣nings Case, the Conveyancers did contrive these Trusts of Terms for Years to go beyond that Case. For they seemed to argue thus, That being good by way of Executory devise, then we will declare a Trust, and that the Law has nothing to do with, it is a Creature of Equity, and Governably by Equity. And I have seen a Conveyance of this Nature made by my Lord of Leicester to Marryot and Western, drawn 1658. Where there was the Trust of a Term limited over after an Estate Tail, but that was never insisted upon to be good, all the Cases being other∣wise. If then it be not good by way of Executory devise, it cannot be good by way of Limitation of the Trust of a Term. Now in this Case, certainly it would not be a good Remainder by way of Executory devise. For when a Term is devised to end in Tail, no Man will say a Remainder of the Term can be limi∣ted over. As for the Case of Wood and Saunders, That, My Lord, I conceive had been good by way of Executory devise. A Man that hath a Term, deviseth it to his Wife for life, and if John his Son be living at the death of his Wife, then to him in Tail, but if he die without Issue living, Wife, then to Edward, that might be good. For it is a condition precedent as to John, and there he must survive his Father and Mother, or he takes

nothing, but he dying before them, never vested in him at all, and so might well vest in Edward. But in our Case it is void in the Creation, because in the Case here before your Lordship it did vest, and was to attend the Inheritance, when the Con∣tingency happens: Can it then enure to the Plaintiff by way of springing Trust? surely no. In Wood and Saunders Case it ne∣ver vested, in our Case it did vest. But I must, My Lord, crave leave to say one word to another point in the Case, and that is the Recovery. When Contingent Remainders in Law, in Cases of Settlements, may be by any act in Law bar∣red, this Court I conceive, will not set them up agen. Now in this Case before the Contingency hapned, when the Estate Tail of the Inheritance was in my Lord Duke of Norfolk, and the Lease for 200 Years attendant upon that Estate Tail, then doth my Lord Duke suffer a common Recovery, which we apprehend hath so barred and destroyed this Term, that this Court will never interpose to set it up again. My Lord, that which on the Dukes behalf we now desire is, that your Lord∣ship will be pleased to take some further time to consider of it, and deliver your Judgment the next Term.

Mr. Serj. M. My Lord, I did not expect I must confess, an Argument at this rate, and at this time; but your Lordship in great tenderness and favour, hath given them leave to do it: but after all, under favour, what they say is a great mi∣stake of the Case. If they had observed what was said, and truly applied it, they would have answered themselves. What interpretation in such a Case shall be made, or not be made, is meerly matter of Equity, which upon the circumstances of every Case is governable by the Circumstances. I would not go after their Example to argue, to support, as they have done to overturn the Opinion of the Court that has been delivered. But I would offer this to your Lordship, there is a great mi∣stake in calling this a Remainder, it is no such thing as a Re∣mainder: It is indeed a springing Trust upon a Contingency; But pray, my Lord, consider, how it stands here in Equity before your Lordship. Here is a noble and great Family, the Heir of it under the Visitation of the Hand of God, which no one could remove but God alone, here are a great and numerous Issue to provide for, that provision which is made according to the Rules of Nature and Justice, and it being necessary to be done, no Man could contrive it better than this settlement. My Lord, they frighten us with the word Perpetuity. It is true, a Perpetuity cannot be maintained, that is, an Inheri∣tance not to be aliened or barred, or that can never end. But

here is but the name of a Perpetuity, and certainly, that must be a strange and monstrous Perpetuity, that must determine within the short space of a Life. A Perpetuity is an Estate that can never be barred. And Littleton hath a Rule, that there is no Estate but can be barred, if all the Persons concern∣ed in it joyn. But it is under favour a contradiction, and a great one to call this a Perpetuity; a monstrous one, I say it is, where any Man can see the end of it, and whereas to the circumstances of the Case, the Family could not otherwise be well provided for. And whereas Perpetuities are abhorred, it is upon the inconvenience, which hinders other provisions in case of necessity, and it were indeed an inconvenience, that every Family should have the misfortunes that were in this, and not be able to provide some sort of remedy for them. Some cases my Lord, have been put by the other side now, which under favour are nothing to the purpose, and would need no other answer than they give themselves. But truly I think it is not fit for the advantage of the publick, that after a Case has been so solemnly argued, the Counsel should dispute the Opinion of the Court.

My Lord, I would desire to say a word in answer to some things that have been urged. As to the Case that Mr. H—ch∣—s put, I think it had been good by way of Executory devise. To one and his Heirs Males, till such an one returns from Rome, or the like, had been good, especially where the determination Depends but upon the expiring of a short Life. But all this is but Petitio principii, the same thing over and over. As for Child and Baylies Case, there are several things, that differ it from ours. There it hath a semblance of our Case, of one dying without Issue, but it is there upon a Life, and not with∣in a Life as ours doth. And in our Case, my Lord, this Li∣mitation to Henry, is a Limitation of a Term attendant upon an Inheritance, and then it is plainly as if the Limitation of a Freehold Estate were to one and the Heirs of his Body, and if such an accident happens, the Estate to cease, and be to another for a 100 Years. And it is in Henry attendant upon the Inheritance; it should not if Henry had died, gone to his Exeecutor but to his Heir. Then as to Charles, here is a con∣dition that determines the whole Trust as to Henry, and there it begins to be first a Limitation of a Term in gross. He that creates a Term attendant upon an Inheritance, may se∣ver it if he will, and if he may sever it, may he not limit it upon a Contingency, that upon such a Contingency it shall be severed. All conditions are either precedent, or subse∣quent.

Precedent to create a springing Trust, and Subsequent to destroy the former Estate. In Wood and Saunders Case, John did not take, but upon the precedent Condition, but Edward took it upon the subsequent Condition. In our Case this condition is both; as to the destroying of the Trust to Henry it is a subsequent Condition, but as to the creating a new Trust to Charles it is a precedent Condition. My Lord, I must not undertake to argue this Case, but only to say a little to what was said on the other side, we hope it being upon so short a Contingency which has now hapned, the Li∣mitation of this Term to the Plaintiff is good, and we pray your Judgment for him.

THE Lord Chancellor's SECOND ARGUMENT.

Lord Chancellor,

I Am not sorry for the Liberty that was taken at the Bar to argue this over again, because I desired it should be so; for in truth I am not in love with my own Opinion, and I have not taken all this time to consi∣der of it, but with very great willingness to change it, if it were possibe I have as fair and as justifiable an opportunity to fol∣low my own Inclinations (if it be lawful for a Judge to say he has any) as I could desire; for I cannot concur with the three Chief Judges, and make a Decree that would be unexcepti∣onable: But it is my Decree, I must be saved by my own Faith, and must not Decree against my own Conscience and Reason.

It will be good for the satisfaction of the publick in this Case, to take notice how far the Court is agreed in this Case, and then see where they differ, and upon what grounds they differ; and whether any thing that hath been said be a ground for the changing this Opinion. The Court agreed thus far:

That in this Case it is all one, the Limitation of the Trust of a Term, or the Limitation of the Estate of a Term, all de∣pends upon one and the same Reason. The Court is like∣wise agreed (which I should have said first, to dispatch it out of the Case, that it may not trouble the Case at all) that the Surrender of Marryot to the Duke of Norfolk, and the common Recovery suffered by the Duke, are of no use at all in this Case. For if this Limitation to Charles be good, then is that Surrender and the Recovery a breach of Trust, and ought to be set aside in Equity, so all the Judges that assisted at the hearing of this Cause agreed; If the Limitation be not good, then there was no need at all of a Surrender to bar it, nor of the common Re∣covery to extinguish it.

But then we come to consider the Limitation, and there it agreed all along in point of Law, That the measures of the Li∣mitations of the Trust of a Term, and the measures of the Limi∣tations of the Estate of a Term, are all one, and uniform here, and in other Cases, and there is no difference at Chancery or at Common Law, between the Rules of the one and the Rules of the other; what is good in one Case, is good in the other. And therefore in this Case the Court is agreed too, that the Limita∣tions made in this Settlement to Edward, &c. are all void, for they tend directly and plainly to Perpetuities, for they are Limi∣tations of Remainders of a Term in gross after an Estate Tail in that Term, which commenceth to be a Term in gross, when the Contingency for Charles happens.

Thus far there is no difference of Opinion: but whether the Limitation to Charles, if Thomas die without Issue, living Henry, whereby the Honour of the Earldom of Arundel descends upon Henry; I say, whether that be void too, is the great Question of this Case wherein we differ in our Opinions.

It is said that is void too; and yet (sever it from the Autho∣rity of Child and Baylie's Case, which I will speak to by and by) I would be glad to see some tolerable Reason given why it should be so; for I agree it is a Question in Law here upon a Trust, as it would be elsewhere upon an Estate; and so the Questions here, are both Questions of Law and Equity. It was well said, and well allowed by all the Judges, when they did allow the Re∣mainders

of Terms after Estates Tail in those Terms to be void. I shall not devise a Term to a Man in Tail with Remainders over; the Judges have admirably well resolved in it, and the Law is setled (and Matthew Mannings Case did not stretch so far) because this would tend to a Perpetuity.

Now on the other side, I would fain know, when there is a Case before the Court, where the Limitation doth not tend to a Perpetuity, nor introduceth any visible Inconvenience, what should hinder that from being good: For tho' if there be a ten∣dency to a Perpetuity, or a visible Inconvenience, that shall be void for that reason; yet the bare Limitation of the Remainder after an Estate Tail, which doth not tend to a Perpetuity, that is not void. Why? because it is not? I dare not say so; see then the Reasons why it is so. The Reasons that I lie under the load of, and cannot shake off, are these.

The Law doth in many Cases allow of a future Contingent Estate to be limited, where it will not allow a present Remain∣der to be limited; and that Rule, well understood, goeth through the whole Case. How do you make that out? Thus: If a Man have an Estate limited to him, his Heirs and Assigns for ever, (which is a Fee-simple) but if he die without Issue living J. S. or in such a short time then to J. D. tho' it be impossible to limit a Remainder of a Fee upon a Fee, yet it is not impossible to limit a Contingent Fee upon a Fee. And they that speak against this Rule, do endeavour as much as they can to set aside the Resolu∣tion of Pells and Browns Case, which (under favour) was not the first Case that was so Resolved; for as I said before, when I first delivered my Opinion, it was resolved to be a good Limitation, 19 Eliz. in the Case of Hinde and Lyon, 3 Leonard 64. which by the way is the best Book of Reports of the later ones that hath come out without Authority. If that be so, then where a present Remainder will not be allowed, a Contingent one will. If a Lease for years come to be limited in Tail, the Law allows not a present Remainder to be limited thereupon, yet it will allow a future Estate arising upon a Contingency only, and that to wear out in a short time.

But what time? and where are the bounds of that Contin∣gency? You may limit, it seems, upon a Contingency to hap∣pen in a life: what if it be limited, if such a one die without Issue within 21 Years, or 100 Years, or while Westminster-hall stands? Where will you stop if you do not stop here? I will tell you where I will stop: I will stop where-ever any visible Inconve∣niece doth appear; for the just bounds of a Fee-simple upon a

Fee-simple are not yet determined, but the first Inconvenience that ariseth upon it will regulate that.

First of all then, I would fain have any one answer me, where there is no Inconvenience in this Settlement, no Tendency to a Perpetuity in this Limitation, and no Rule of Law broken by the Conveyance? what should make this void? And no Man can say that it doth break any Rule of Law, unless there be a Ten∣dency to a Perpetuity, or a palpable Inconvenience. Oh, yes, Terms are meer Chattels, and are not in consideration of Law so great as Freeholds, or Inheritances. These are words, and but words, there is not any real difference at all, but the Reason of Mankind will laugh at it: shall not a Man have as much power over his Lease, as he has over his Inheritance? If he have not, he shall be disabled to provide for the Contingencies of his own Family that are within his view & prospect, because it is but a Lease for years, and not an Inheritance or a Freehold. There is that absurdity in it which is to me insuperable, nor is the Case that was put, answered in any degree. A Man that hath no E∣state but what consists in a Lease for years, being to Marry his Son, setled this Lease thus: In Trust for himself in Tail, till the Marriage take effect; and if the Marriage take effect while he lives, then in Trust for the Married couple; is this fu∣ture Limitation to the married couple good or bad? If any Man say it is void, he overthrows I know not how many Mar∣riage-settlements: If he say it be good, why is it not a future Estate in this Case as good as in that, when there is no tenden∣cy to a Perpetuity, no visible Inconvenience?

All Men are agreed, (and my Lord Chief Justice told us par∣ticularly how) that there is a way in which it might be done, only they do not like this way; and I desire no better argument in the World to maintain my Opinion, than that; For, says my Lord Chief Justice, suppose it had not been said thus, if Thomas die without Issue, living Henry, then over to Charles; but thus, if it happens that Thomas die without Issue in the life of Henry, &c. then this Term shall cease, and there shall a new Term arise and be created to vest in Charles in Tail, and that had been wonder∣ful well, and my Lord of Arundel's intention might have taken effect for the younger Son. This is such a subtilty as would pose the Reason of all Mankind: For I would have any Man living open my understanding so far, as to give me a tolerable Reason why there may not be as well a new springing Trust upon the same Term to go to Charles, upon that Contingency, as a new springing Lease upon the same Trust: For the latter doth much

more tend to a Perpetuity than the former doth, I am bold to say it.

But I expect to hear it said from the Bar, and it has been said often, the Case of Child and Balie is a great Authority, so it is. But this I have to say to it, first, the point resolved in Child and Balie's Case was never so resolved before, nor ever was there such a Resolution since. Pells and Browns Case was otherwise resolved, and has often been adjudged so since. In the next place, I will not take much pains to distinguish Child and Balie's Case from this, tho' the word (Assigns) and the grant of the Re∣mainder by the Mother, who was Executrix, are things that Rolls lay hold on as Reasons for the Judgment. But I know not why I may not with Reverence to the Authority of that Case, and the Learning of those that Adjudged it, take the same liber∣ty as the Judges in Westminster-hall sometimes do, to deny a Case that stands single and alone of it self. And I am of Opinion the Resolution in that Case is not Law, tho' there it came to be resolved upon very strange circumstances to support such a Re∣solution; for the Remainder of a Term of seventy six years is called in question when but fifteen years of it remained, and af∣ter the possession had shifted hands several times, and therefore I do not wonder that the Consideration of Equity swayed that Case.

But I put it upon this point, pray consider, there is nothing in Child and Balie's Case that doth tend to a Perpetuity, nor any thing in the Settlement of the Estate there, that could be called an Inconvenience, nor any Rule of Law broken by the Convey∣ance; but it is absolutely a Resolution quia volumus. For it disa∣grees with all the other Cases before and since, all which have been otherwise resolved; but it is a Resolution, I say, meerly because it is a Resolution. And it is expresly contrary to Wood and Saunder's Case, which no Art or Reason can distinguish from our Case or That. For here was that Case which was clipt and min∣ced at the Bar, but never answered. Wood and Saunder's Case is this. To the Husband for sixty years, if he lived so long; to the Wife for sixty years, if she lived so long; then if John be living at the time of the death of the Father and Mother, then to John; but if he die without Issue, living Father or Mother, then to Edward. Suppose these words (living Father or Mother) had been out of the Case, and it had been to John, and if he die without Issue, to Edward, will any Man doubt, but then the Remainder over had

been void, because it is a limitation after an Express Entail? How came it then to be adjudged good! because it was a Remainder upon a Contingency, that was to happen during two lives, which was but a short Contingency, and the Law might very well expect the hapning of it? Now that is This Case, nay ours is much stronger; for here it is only during one life, there were two.

The Case of Cotton and Heath in Rolls comes up to this: A Term is devised to A. for eighteen years; the Remainder to* 1.13 B. for life, the Remainder of the first Issue Male of B. which is a Contingent Estate after a Contingency, and yet adjudg∣ed good, because the happening of the Contingency was to be expected in so short a time. Now that Case was adjud∣ged by my Lord Keeper Coventry, Mr. Justice Jones, Mr. Ju∣stice Crooke, and Mr. Justice Berkley, as Wood and Saunder's Case was by my Lord Keeper Bridgman, Mr. Justice Twis∣den, and Mr. Justice Reinsford; so that however I may seem to be single in my Opinion, having the misfortune to differ from the three Learned Judges who assisted me, yet I take my self to be supported by seven Opinions in these two Ca∣ses I have cited.

If then this be so, that here is a Conveyance made which breaks no Rules of Law, introduceth no visible Inconvenience, savours not of a Perpetuity, tends to no ill Example, why this should be void only, because it is a Lease for years, there is no sence in that.

Now if Charles Howards Estate be good in Law, it is ten times better in Equity. For it is worth the considering, that this Limitation upon this Contingency happening, (as it hath, God be thanked) was the considerate Desire of the Family, the Circumstances whereof required Considera∣tion, and this Settlement was the result of it, made with the best Advice they could procure, and is as prudent a pro∣vision as could be made. For the Son now to tell his Fa∣ther that the provision that he had made for his younger Brother is void, is hard in any Case at Law; but it is much harder in Chancery, for there no Conveyance is ever to be set aside, where it can be supported by a reasonable Con∣struction, and here must be an unreasonable one to over∣throw it.

I take it then to be good both in Law and Equity; and if I could alter my Opinion, I would not be ashamed to retract it: for I am as other Men are, and have my parti∣alities as other Men have. When all this is done, I am at the Bar desired to consider further of this Case: I would do so, if I could justifie it; but Expedition is as much the right of the Subject, as Justice is, and I am bound by Magna Charta, Nulli negari, nulli differre Justitiam. I have taken as much pains and time as I could be informed; I can∣not help it if wiser Men than I be of another Opinion; but every Man must be saved by his own Faith, and I must dis∣charge my own Conscience.

I have made several Derees since I have had the Honour to sit in this place, which have been reversed in ano∣ther place, and yet I was not ashamed to make them, nor sorry when they were reversed by others. And I assure you, I shall not be sorry if this Decree which I do make in this Case, be reversed too; yet I am obliged to pro∣nounce it, by my Oath and by my Conscience. For I cannot adjourn a Case for difficulty out of an English Court of Equity into the Parliament; there never was an Ajourn∣ment Propter Difficultatem, but out of a Court of Law where the proceedings are in Latin. The proceedings here upon Record are in English, and can no way now come into Parliament, but by way of appeal, to redress the Error in the Decree. I know I am very likely to err, for I pretend not to be Infallible; but that is a thing I cannot help. Upon the whole matter, I am under a Constraint, and un∣der an Obligation which I cannot resist. A Man behaves himself very ill in such a place as this, that he needs to make Apologies for what he does, I will not do it. I must Decree for the Plaintiff in this Case, and my Decree is this:

That the Plaintiff shall enjoy this Barony for the residue of the Term of two hundred years, the Defendant shall make him a Conveyance accordingly, because he extinguish∣ed the Trust in the other, and the Term contrary to both Law and Reason, by the Merger and Surrender and com∣mon Recovery. And that the Defendants do account with the Plaintiff for the profits of the premisses by them or any

of them received since the Death of the said Duke Thomas, and which they or any of them might have received with∣out wilful default; and that it be referred to Sir Lacon Wil∣liam Child, Knight, one of the Masters of this Court, to take the said Accompt, and to make unto the Defendants all just allowances; and what the said Master shall certifie due, the said Defendants are to pay unto the Plaintiffs, accord∣ing to the Masters Report herein to be made. And that the Defendants shall forthwith deliver the possession of the Pre∣misses to the Plaintiff, and that the Plaintiff shall hold and enjoy the said Barony of Greystock, with the Lands and Tenements thereto belonging, for the residue of the said Term of two hundred years, against the Defendants, and all claiming by, from, or under them. And it is further Ordered and Decreed, that the said Defendants do Seal and Execute such a Conveyance of the said Term to the Plain∣tiff as the Master shall approve of, in Case the parties can∣not agree the same; but the Defendants are not to pay any Costs of the Suit.

Die Veneris, 19 Junii, 1685.

AFter hearing Council two several days upon the Petition and Appeal of Charles Howard, Esq; shewing, that his Father intended a Provision for his younger Chil∣dren, by Deed, made by advice of eminent Council, and did settle the Barony of Greystocke, and other Lands, of the value of 500 l. per annum, in Trustees, in order thereun∣to; and that after a long Suit in Chancery, wherein the Peti∣tioner was Plaintiff, against his Grace the late Duke of Nor∣folk, the Marquess of Dorchester, Henry Lord Mowbray, and Richard Marriott, Esq; Defendants, the Cause coming to be heard before the Lord Chancellor Nottingham, on the 17th of June, in the Four and Thirtieth Year of His late Majesties Reign, of Glorious Memory; who after several Days hearing, did declare his Opinion to be, That the Petitioner had a good Title to the Barony of Greystocke, and other the Lands in question; and Decreed the Defendants to account to him for the Profits thereof by them received after the Death of Tho∣mas, late Duke of Norfolk; which Decree was signed and en∣rolled, and the Petitioner actually vested in the Possession of the said Mannors and Premisses; and further sheweth, That the Defendants, the late Duke of Norfolk, the Lord Mowbray, now Duke of Norfolk, and Richard Marriott, exhibited a Bill of Review into the High Court of Chancery, for reversing the said Decree; to which the Petitioner put in a Plea, and De∣murer; which being argued on the 15th of May, in the Five and Thirtieth Year of the Reign of our late King, Charles the Second, before the Right Honourable the Lord Keeper of the Great Seal of England, who after hearing Council on both sides, over-ruled the said Plea and Demurrer, and reverst the Decree aforesaid; and ordered a Writ, or Writs of Restituti∣on, to be directed to the Sheriffs of Cumberland and Westmer∣land, to put the Plaintiffs in the Bill of Review, in Possession; which accordingly was done, as in the Petition, amongst other things, is suggested; and prayed a Reversal of the last Decree; as also upon the Answer of the Right Noble Henry Duke of Norfolk, Earl Marshal of England, and Richard Marriot, Esq; put in thereunto. And after due Consideration had of what was offered at the Bar by Council on either part thereupon, IT is ordered and adjudged by the Lords Spiritual and Temporal, in Parliament assembled, That the said Decree made in the High Court of Chancery, on the 15th of May, in the Five and Thirti∣eth

Year of the Reign of the late King Charles the Second, of Glorious Memory, in behalf of the late Duke of Norfolk, and the now Duke of Norfolk, and Richard Marriott, Esq; be and is hereby reversed; and that the Decree made in the said Court of Chancery, on the 17th of June, in the Four and Thirtieth Year of His late Majesties Reign, in behalf of Charles Howard, Esq; the now Petitioner, Be, and Is hereby affirmed.

JOHN BROWNE, Cler. Parl.

FINIS.

Notes

• * 1.1

  Modern Re∣ports, 115.
• * 1.2

  Modern Re∣ports, 115.
• * 1.3

  Roll. abr. tit. devise, 612.
• * 1.4

  Co. 1. 156.
• * 1.5

  Co. 10. 87.
• * 1.6

  Cro. Mich. 18 Jac. 590
• * 1.7

  3 Leonard. 64.
• * 1.8

  Dyer, fol. 74.
• * 1.9

  Dyer, f. 277
• * 1.10

  Dyer, f. 328 Dyer, f. 358.
• * 1.11

  Cro. Hil. 15. Jac. 459.
• * 1.12

  Mr. Serj. M.
• * 1.13

  Roll. abr. tit. Devise 612.