THE Duke of Norfolk's CASE: OR THE DOCTRINE OF PERPETUITIES Fully set forth and Explained. Printed Anno Dom 1688. printer's device, featuring the head of a native American or Indian in a feathered head-dress, surrounded by fruits, leaves, and flowers, including roses TO THE READER. Courteous Reader, THis Case, in all its parts, hath been Collected with all the Care imaginable, by several good Hands; and what grand agitation it received, is not unknown to any that know Westminster-Hall: It may be recommended to the World for Public use, upon that score alone: For what can be more reasonably thought to please, and take with Men of Judgement in any Profession, than to peruse the Skill and Arts, that have been curiously, and with as great integrity, made use of by men of the most Famous Reputation in what they profess? Besides too, if thou dost but consider the great Deliberations, and the mighty Cautions that have been always used by all Persons concerned in the Conduct, Debate, and Judgement of this Cause, till after many Debates and Hear at the Bar, it came to receive its final Judgement in the highest Court of the Kingdom, before the Lords in Parliament, assisted by all the Judges of England, Thou wilt certainly conclude, That no unkind acceptance ought to demur upon this Case. Here is variety of Learning manifest in the sundry Conceptions of Great and Learned Men; but the Nicety lies chief upon the Doctrine and Explication of that abstruse Notion in Law, called Perpetuities, concerning which, the Sage Opinions (introductive to this Case) of the great Council will better instruct thee (that were prudently taken by both Parties before the Cause commenced) and undoubtedly serve and answer the True Ends of a Preface infinitely beyond what thou canst expect from me. Their Opinions in Private are always delivered with as much Candour and Caution as their Arguments at the Bar. And the one may be truly said to be of as great use to the Public (when their Opinions can be had), if the Cause be Meritorious, and will bear it, as the other. Reader, it will be wholly impertinent to hold thee here; and I should run myself upon an absolute necessity (if I should detain thee longer from the fruition of those delicacies I present thee) of troubling thee with my impertinent Compliments, for presenting thee with a needless and impertinent Epistle; Wherefore enter in, see it thyself, and peruse it for thy profit and satisfaction. Farewell. THE Duke of Norfolk's CASE. A. Bargains and Sells to L. the Baronies of Gr. and 20 Martii. 1647. Br. for 10 Months. A. Grants the Reversion of those Baronies to 21 Martii 1647. R. and D. and their Heirs to the use of A. for life. Remainder to E. the Wife of A. for life, Remainder to R. and D. etc. for 200 years upon trusts, to be declared by another Deed of the same date, Remainder to H. H. his second Son and the Heirs Males of his body, Remainder to C. H. his third Son, and the Heirs Males of his body, Remainder to E. H. his fifth Son, and the Heirs Males of his body, Remainder to A. H. his sixth Son, and the Heirs Males of his body, Remainder to B. H. and the Heirs Males of his body, Remainder to the right Heirs of A. L. Attornes Tenant to R. and D. etc. A. makes another Deed, declaring the Trust of the Term 21 Martii 1647. for 200 years reciting it, and the uses in the last-mentioned Settlement says in the reciting part, That 'tis intended that the Term should attend the Inheritance, the Profits be received by H. H. and the Heirs Males of his body; and for default of such Issue, such other persons, who according to the limitation of Uses, should have had them if no such term had been, so long as T. H. son of A. or any Issue Male of his body shall live. But in case T. H. die without Issue of his body, in the life of H. H. not leaving his Wife ensient with a Son, or that after the death of E. H. by failure of Issue Male of T. H. the honour of A. should descend on H. H. then H. H. and his Heirs to be excluded of the Trust, than the Indenture witnesseth, that the Term shall be upon the Trusts and under the restrained Limitations and Provisoes after-mentioned, viz. If T. H. or any Issue Male of his body be living in trust for H. H. and the Heirs Males of his body, until by the death of T. H. without Issue Male, and not leaving his Wife ensient with a Son, or after his death, by failure of Issue Male, the honour of A. descends to H. H. and in case the Honour shall not descend to H. H. that after the death of H. H. the Trust shall be for the Heirs Males of H. H. and for default of such Issue in trust, to permit such other persons and their Issue Male respectively, to whom the or Inheritance is limited by the former Deeds, to take the profits, as if no such Lease were. And in case the Honour of A. descend upon H. H. then the Trust for H. H. and his Issue Male to cease. And then as to the Barony of Gr. in trust for T. H. and the Heirs Males of his body, Remainder to T. H. and the Heirs Males of his body, Remainder to F. H. and the Heirs Males of his body, Remainder to B. H. and the Heirs Males of his body, Remainder to H. H. and the Heirs Males of his body, Remainder to the right Heirs of A. the Father. And as to the Barony of Br. as to one third part of it in trust for E. H. and the Heirs Males of his body, Remainder to F. H. and the Heirs Males of his body, Remainder to B. H. and the Heirs Males of his body, Remainder to T. H. and the Heirs Males of his body, Remainder to H. H. and the Heirs Males of his body, Remainder to the right Heirs of A. And as to another third part of the Barony in trust for F. H. and the Heirs Males of his body, with like Remainders to the other Brothers, ut supra; Remainders to the right Heirs of A. And as to the other third part in trust for B. H. and the Heirs Males of his body, with the like Remainders to the rest of the Brothers, ut supra. A. died in 1652. E. the Wife of A. died in 1673. and then the term of 200 years commenced. D. the surviving Trustee at the request of H. H. assigned 20 Novemb. 1675. the term to one Marriot. Marriot assigned the term to H. H. 1 Dec. 1675 H. H. by Bargain and Sale enroled, sells to M. to make him 24 Octob. 1675. Tenant to the Praecipe for suffering a Recovery. The use of the Recovery declared to be to H. H. and his 25 Octob. 1675. Heirs. T. H. the eldest Son of A. died without Issue or having ever Nou. 1677. been married. Query. If the Trust to H. H. be good, and the other Trusts limited to the other Brothers on the Contingent, in case T. H. died, whereby the Honour of A. should descend to H. H. be good or void, relievable or not relievable in a Court of Equity, the Term being surrendered? I am of opinion, that the Trusts to all the Brothers of H. H. Serjeant P— ton' s opinion 26 Dec. 1677. in his term are void, and no ways relievable in Equity: For if these Limitations, being made after T. H. shall die without Issue Male of his body, were good in their Original Creation to the Brothers of H. H. it must be by the attendancy of the term upon the Reversion of the Estate which was so entailed, and then when their Estates in remainder were docked by the recovery which H. H. suffered, and the Trusts that attended on them were likewise destroyed, and can never survive the Remainder on which they depended, no more than they could have stood alone in their Original Creation. I conceive that the Trust for the term is appointed to wait Serj. M— d' s opinion 28 Dec. 1677. upon the Inheritance in the forepart of the Deed, though seeming contrary to the latter part is not so, but both may be reconciled (that is to say) shall wait upon the Inheritance upon such Contingencies as hereafter is expressed, being the Trust is limited and in the same order, only the Contingencies of the death of T. H. without Issue, etc. prout. The Trust of the term limited to H. H. and the Heirs Males of his body, with Remainders over as this Case is, I think is a good Trust, and will go accordingly, so long as there is no charge made, though regularly a Term for years cannot be entailed, yet it may be made to wait upon the Inheritance that is entailed. But when it is so limited, 'tis not properly an Entail within the Statute de bonis, but governable partly in Equity, and partly in Law. H. H. to whom it is so entailed may dispose of it, and thereby bind his Issue without Fine and Recovery, as I conceive. And the Term so limited Entail, shall be subject to his Debts against the Issue Entail, as I also conceive. By the Recovery suffered by H. H. all the Intails are barred, and consequently the waiting of the Term upon the Inheritance destroyed, because the Inheritance itself is changed; but the bare surrender of the Trustee could not have that operation if nothing else had been in the Case. But the greatest question in this Case, I conceive, will arise upon the death of T. H. without Issue and the other Contingencies, because the Trust of the term is not limited to H. H. absolutely, but to cease upon those Contingencies, and then to be altered; yet seeing the main intention of the Settlement was to make the Term wait upon the Inheritance, as by the recital of the Deed, and when it changes is limited by way of Inheritance. Therefore I conceive that H. H whilst he was owner of the Inheritance and trust of the Term, suffered a Recovery, the Contingent trust of the Term to the others are destroyed. In Law they have no Relief, because the Estate for years is surrendered, and I conceive the Chancery will not support such leaping Limitations of a Term for years, especially when it cannot take effect in toto, as the contingent Limitations are, and the Remainders in that case will be void. M— d. I am of opinion that the Term being limited to H. H. and Sir William Joan' s opinion 20 Jan. 1677. the Heirs of his body under other Limitations than the Inheritance was, the whole term vested in H. H. and the Limitations thereof to the other Brothers were void: For a Trust of a Term cannot be entailed unless it be to attend an Inheritance; and the limitations of the Trust differing from the limitations of the Inheritance, 'tis all one as if the Trust of the Term was limited, without respect to any Inheritance, in which Case the limitations of the Term to the other Brothers would be clearly void. Next I take it to be clear, that taking the Trust of the term to be attendant to the Inheritance of the Recovery, having barred the Remainders of the other Brothers as to the Inheritance, the Trust of the term must needs be wholly in H. H. and that the other Brothers can never claim the same in Equity: For since the Inheritance (as intendant to which they could only be entitled to any part of the Trust of the term) is vested wholly in H. H. and no remainder left in the Brothers, there can be no Remainders in any of them of the Trust of the term; but as the whole Inheritance is now in H. H. so doth the whole Trust attend that Inheritance. W. Jones. I am of opinion, that the now Duke of Norfolk and Earl Sir William Jones' s opinion 30 Oct. 1680. of Arundel, have a good Title to the said Baronies. First, in Law 'tis clear, that the Term is surrendered; and so if any Title remain to the younger Brothers, it can only be in Equity. And Secondly, I think there is no Title in Equity, as to which it may be insisted upon, that if the Limitations of the Trust of the term were at first good; yet seeing they are chief to attend the Inheritance, and that Inheritance by the Recovery is changed and made a Fee Simple, and this before the Contingency in the limitation of the Trust of the Term happened, whereby the limitations of the Trusts are changed, and the younger Brothers cannot have the Term in the same plight, nor during the same Estate, as were at first designed. I say, from these Considerations it may be concluded, that the limitations of the Trust of the Term are destroyed; but that which I do most rely upon, is, that the first limitation of the Trust of this Term under this Contingency, was altogether void; as to which, the Case is no more than that a Term of 200 years is granted in trust, that H. H. and the Heirs of his body shall receive the Profits, until by the death of T. H. and the failure of Issue-Male of his body, the Honour of A. shall come to H. H. and in case the Honour of A. shall descend to H. H. then the Trust for him and the Issue-Male of his body to cease; and then 'tis limited respectively to the younger Brothers, and the Heirs Males of their respective bodies; I conceive these limitations to the younger Brothers are void. First, it will be agreed, that the limitation of the Trust of a Term to one and the Heirs-Males of his body, and for want of such Issue to another is void. As to the Second, I think it as clear, that if a Trust of a Term be limited to one, as long as John a Styles hath Issue of his body, and that John a Styles die without Issue of his body, then to another that Remainder is void: Likewise that which seems to make the doubt in this present Case is, that the Contingency must happen within a Life (viz.) the Honour of A. descend to H. H. which must be to him in his life-time, or not at all. To which I answer, that though a Contingency be remote in itself, and not likely to happen within a Life, the time within which it ought to happen, or not at all; doth not alter the case, and therefore in Child and Bayly's Case, reported in 2d of Coke, and by Jones and Palmer, the failure of Issue was limited to be within a Life (viz.) a Term was devised to one and his Assigns, and if he die without Issue of his body living, at the time of his death, then to another: this was adjudged no Remainder unto that other; and though 'twas objected that the Contingency must happen within the compass of life, or not at all, yet no regard was given to that. This Case seems to me in reason to be the same with ours. I do observe, that no Case can be found, whether limitation either by way of Trust or Devise of a Term hath been allowed to take effect upon a failure of Issue, or after death of the party to whom the first Estate was limited without Issue. And as in Child and Bayly's Case the Judges say, as I have often heard them say in other Cases (that if Matthew Maning's Case was now to be adjudged, it would not be so adjudged; and that case is) a Term is demised to one for life, and after his death to another, which is allowed good, and that they would not go a step farther so. I say, in this Case it must go further than Manning's Case, or any other Case that adjudged to make it void. William Jones. The Case is new, and without any express Precedent, and Serj. M— d' s opinion 20 Nou. 1680. therefore not capable of so certain a determination as would be expected, in case advice were to be given, whether a Purchaser should deal in the buying of a Lease or not. Yet though there be no Precedent in point, yet suchlike Cases have been determined as guide my Judgement and Opinion to be (scilicet) that as this Case is circumstantiated, Charles hath not, nor can have a right to the Trust of the Term, the Reasons and ground of my Opinion is as followeth. First, The Trust of the term for years in gross, and separate from an Inheritance, cannot be entailed in Possession or Remainder; but yet where there is a Term for years in being, if the Inheritance of the Land be entailed with Remainders over, there the Term may be limited to wait upon the Inheritance, according to the several Intails; and such limitation is good, so long as nothing intervenes to interrupt or disturb it. But I conceive is not capable of such Privileges of Entail as Inheritance is, for the Entail is confirmed by the Statute of Westm. 2d de bonis; but the attendance of the Term upon the Inheritance entailed, is not within the Statute de bonis, etc. but is a Creature of the Chancery, and in several Cases may be destroyed and barred, though no Fine and Recovery or other bar be made of the Inheritance. I conceive such case if the Tenant entail Alien without Fine or Recovery for valuable Consideration, the Issue Entail shall avoid the Inheritance, the Chancery shall never help him to avoid the Lease. In this particular Case it is clear, that neither Charles nor any in Remainder, can recover this Term at Law, but only by suit in Chancery; and in Chancery shall never recover where the limitation of such a Term in being is not supportable in Common Law, which in this Case it is not, as I conceive; for take the Case without the Contingency, that Henry was Tenant Entail, Remainder to Charles Entail, etc. the Recovery suffered by H. would have barred Charles and the rest of the term, as well as of the Inheritance. But the sole Objection here is, that the trust of the term to Henry is expressed, that it shall determine quo ad Henry and his Issue, in case Tho. Duke of Norfolk die without Issue, living Charles, as in this case he did. The strength of this Objection lies in this: First, That the Cessor of the Trust is to be upon the death of a Stranger without Issue (scil.) on Tho. Duke of Norfolk, on whom the Lands were not Entailed. And secondly, The term is not to cease, but upon the death of Tho. Duke of Norfolk without Issue in the life of Henry. As to the first, it will make no difference in Reason and in the pollity of the Law, where the Cessor is limited on the death of a Stranger without Issue, or of the Tenant Entail without heir of his body. For first, In both Cases the possibility is remote and not regarded in Law, where a term is so limited, and so were the resolutions in child's and Bayly's Case, and divers others. This would be a way to set up a perpetuity, as strongly as that it was limited upon the death of the Tenant in tail without Issue. Put the case there be Father and several Sons A. B. and C. and the Father is seized in Fee of the reversion of Lands, after a Lease of 200 years he settles the Inheritance upon his eldest Son in tail, with Remainders in tail to his other Sons; and this Lease being in trusties for him at the same time, causes the Lease to be settled in trusties in Trust for the Sons, to wait on the Inheritance in Trust accordingly, provided that the second Son die without Issue in the life of the Father or Son, the Trust of the eldest Son to cease. I conceive this would not be maintained in Equity, if the second Son should not alien by Fine and Recovery. As to the Second Objection, that the Cessor is on the Death Mic. 17. Jac. R. B. of Tho. without Issue in the Life of Henry, whereby the Contingency is reduced to happen in the Life of one person (viz.) Henry, and not at large (viz.) of the death of Tho. without Issue, I conceive no difference made thereby, and it is in effect the point adjudged in Child and Bayly's Case which was thus: French a Termer for 76 years' demises to his Wife for Life, Remainder of the Term to W. his Son and his Assigns, Provisee, That if his Son W. died without Issue of his body then living, That T. his Son should have the Term or Interest. Adjudged then in B. R. which was three years after affirmed Mic. 20. Jac. in the Exchequer Chamber by Hobart, Winch, Denham, Hutton, and Jones, that the Demise to Tho. was void. In that Case the Contingency did expect during the life of W. only as here it is on the life of H. and the Reasons of their Judgements both in the King's Bench and Exchequer-Chamber, in effect of all the Judges of England at that time, was because it might tend to make a perpetuity, and that this new-invented way of Intailing of Terms in no sort to be favoured in Law. In Child's Case 'twas limited, if William had no Issue at the time of his decease; in this Case, if Tho. had no Issue at the time of Henry's death. Put case it had been limited, that Tho. had died without Issue in thirty or forty, or any number of years, or if it had been limited that Tho. had died without Issue in the Life of Henry, and five or six more persons, it might have been so limited as well as to one Life, and the Law is the same. It is more Contingent when the Cessor is limited to be upon the death of Tho. without Issue in the life of Henry, than it had been if Tho. had died without Issue generally; for he may die without Issue, though he die not without Issue in the life of Henry. First, the sum of this is, if such limitation of a Term as this is, be not good at Law, the Trust of a Term cannot be good in Chancery. Secondly, the general scope of the Settlement of the Term was, that the Term shall wait on the Inheritance Entail, which now cannot be, because it is altered. Again, if the Law should be otherwise, that Charles have the whole Term, than those in Remainder shall be utterly defeated of it, and shall not go to Charles his Son and Heir, but to the Executors, which was never intended by the Deed. M— d. I conceive, that notwithstanding the late Judgements in Opinions and Considerations for the younger Brothers. Sir J. C—. Chancery have been, that if a Term of years be limited by way of Trust, or otherwise, to any person and his Heirs Males, with Remainders over, or other limitations to any other persons, those Remainders and Limitations are void, and the whole Term shall be to that person and his Executors and Administrators, to whom it was first limited in Tail; yet this Case is different from all those Cases, by reason this was only a Temporary Provision as to Mr. Henry Howard, until that Contingent of the death of the Duke of Norfolk should happen, and then absolutely to cease as to Mr. Henry Howard. And then the Trust of the Term is declared to be for the preferment of the younger Sons, as is above expressed; and albeit that Marriot hath in plain breach of Trust by his Assignment, enabled the now Duke to destroy the Term in point of Law; yet the Chancery may subject the Lands during the Remainder of the term to the trusties for the younger Children, as agreeable to the intention of the Deed of Trust, and to all Honesty and Equity, and that Equity I take is in no sort barred by the Fine, if a Bill be exhibied in time. J. C. 8 Jan. 1677. I concur with this Opinion, because it is no absolute Trust, Sir R. S. not so much as for the life of Henry, but a limited Trust upon a Contingent, which as in its Creation it might, so in Fact, it did happen in the life-time of Henry; and consequently there is no room for any Construction to be made, that the Trust of the whole term vested in Henry against the express limitation thereof. R. S. I conceive, first, that if by Act executed my Lord of Arundel Mr. Offley. had created this term to my Lord Dorchester, and the rest of the trusties in trust for Henry Howard in tail, and after his death to the Brothers in tail, that had been a perpetuity, and not good for a term; though as to that, there is a difference taken in Tatten and Mollenex Case, Moore 809, 810. in Chancery, by the Lord Chancellor, and the Judge's assistant; which seems to be reasonable, that the first party that is the Cestique Trust against his Issue, may dispose of it, but not against him in Remainder; for Equity preserves it as to the Remainder, so than if it had been to Henry Howard and the Issues of his body, the Remainders to the Brothers: Though Henry Howard could, as to his Issue, dispose of it, yet as to his Brothers it stood good, if that Resolution holds good, and the Books says it was grounded upon precedents in that Court too. But this case differs where the course of Equity is against it; therefore, first there is only by this Conveyance a reception of the profits in Henry Howard and the Issue Male of his body, until the Dignity of Arundel come to him. And it is not in trust for him and his Issue Male; so as he has not the entire trust in him, as the other Sons have by the penning of the Deed. Secondly, 'tis not absolutely in trust in him and his Issue Male, but temporary in them, upon the falling of the Dignity of Arundel sooner or later, and he is not a Cestique trust within any of the Statutes proceeding in the Statute of Uses, but has but a limited pursuance of the profits; but the trust vests completely in the Brothers after. Thirdly, than the Marquis of Dorchester assigns the term to Marriot, and he assigning to H. H. whereby he has in strictness of Law extinguished it, whereby there is a wrong and deceit done to the Brothers, he is bound in equity and good Conscience, to make them recompense and satisfaction for this wrong; and it appearing that H. H. was privy to this, with a design to extinguish it, and that extinguishment turning to his advantage, he is likewise compellable in Equity to answer it out of his Estate, either by creating a new Term in this Land, or by some other way, according to the Resolution of the Judges in my Lord of Ormon's Case, Hubbard 350. I have seen the Opinions of Mr. Attorney-General, Serj. Sir W. Ellis. Maynard, and Serj. Pemberton, whose Opinions I do much value, and have great esteem for. Mr. Attorney saith, that the Term to H. H. and the Heirs of his body, under other limitations than the Inheritance was, the whole Term vested in H. H. and the Limitations thereof to the other Brothers are void, I conceive the whole trust of the Term is not limited to H. H. but part of the Trust, so long as Thomas the deceased Duke shall have Heirs Males of his body, and until the Earldom comes unto him; so as the Trust is but a qualified and limited Trust in H. H. so as this Trust to H. is now ended by way of limitation to H. H. and then there is a new Trust springs and arises to the younger Brothers, not by way of Remainder of a term, but the Trust to H. H. being ended and determined, I conceive a new one may well arise and spring up to the younger Children, admitting it were a trust of a term in Gross, it is not a Remainder, but a future Contingent grant and a limitation to them, as it is in Pell and Brown's Case. Secondly, If it be to attend the Inheritance, than he conceives clearly, the Recovery having barred all Remainders, the Term and the trust of the Term is also barred. If this Trust had been to wait upon all the Estate as they came in possession, it had been the stronger; but as this Case is, I conceive the Trust will wait upon the Estate of H. H. for so long as Tho. lives, and hath Heirs Males of his body, and until the Earldom come unto him, and the Trust of Henry determines, and then a new Trust springs up to the younger Children, which is a future contingent trust, so as a common Recovery can bar this Trust, so long only as they did wait upon the Estate of H. H. which is now determined by a collateral Limitation, and the Recovery cannot enlarge the Trust to H. H and make that to continue which in its Creation was to end when such a Contingent happens, which hath now happened if H. H. had not suffered a common Recovery, he had had an Estate-tail, yet no Trust, this is a future contingent Trust to the younger Children, which cannot be barred by a common Recovery. W. Ellis, 8 Martii 1677. 1. The Surrender or Grant of the Lease for 200 years to Serj. M— d for the Brothers. Henry, nor the extinguishment of the legal Interest of the term, doth not prejudice the equitable Trust of the term, so long as the Lands comes not into other hands (viz.) of a Purchaser, without notice of the Trust, which is not in this Case. 2. An Entail cannot be made of a term in Gross, as if a Lease for 1000 years be made in trust for J. S. and the Heirs of his body, with Remainders over, J. S. may dispose of the whole term, and such disposal is good against his Issue and those in Remainder; and if he die without such disposition made by him, his Executors shall have the benefit of the Trust, and not his Issue or the Remainder. 3. But a Term may be limited to attend and wait on the Inheritance by way of a trust, as if a long term of years be the Reversion in Fee, if the Reversion be purchased in Fee, or settled in tail, the term may be settled to the use of the Fee or Tenant entail; and in that case, if the Tenant entail die, or the Tenant in Fee die, the Heir or Issue shall have the benefit of the trust, and not the Executors, etc. 4. But in that Case, if the Tenant in Fee die in debt, and no other sufficient Assets to pay the debt, in that case the Executor shall be preferred before the Heir, although the debt be such as the Heir is not bound or liable unto. 5. And I conceive, that in that case, if the Tenant entail, that hath the Equity of a term waiting on it, do purchase the term and alien, or obtain the Trustee of the term to make an alienation of the term, it shall bind the Issue entail and him in Remainder, though the Alienation be by Deed without Fine or Recovery, because the term in Law is well aliened without Fine, etc. And the Statute of Westm. 2d de bonis extends not to a Case of a term. 6. Yet it is true, this doth not absolutely determine the Case in question upon three accounts. First, It is a new Case not yet brought in question. Secondly, Because here is a springing and a new trust by accident subsequent, and altars the Trust, and changes the Entail of the term to other persons, from Henry to the younger Children, and on such accident takes away the Trust wholly from Henry the first Tenant in tail. And Thirdly, the Change seemeth to be grounded on great reason; for the Lord Maltravers being in such condition as he was in, there was great reason to disable him and provide for the younger Children, as is done by Case; and if Henry should come to be Earl, and have addition of Estates, that the other younger Children should also have accession of Estate to them, and so it is by this Deed of trust provided. But notwithstanding these reasons, and this difference of the Case in these circumstances from other Cases already resolved, and the contrary Opinions that I have seen, I am rather of the opinion, that in this Case the younger Brothers are bound by the Recovery suffered by Henry, than convinced that they are not bound; for I find that the Reasons given e contra, touch not my doubt fully. The Reasons of my Opinion are (viz.) 1. For the Recovery suffered, and the time when it was suffered (to wit) before the Lord Maltravers died; for till he died, Henry was Tenant in tail, and had power by a Recovery to bar and dispose of the whole Inheritance, as well of his his own Estate tail, as of those in Remainder: The term of years was but accessary to serve and attend the Inheritance which was principal. 2. And the only reason that made such intailing or limitation of the term good, was, because it was to wait on the Inheritance, first to Henry in tail, and so successively to the other Brothers; or else, as it is abovesaid, the limitation had not been good: And when that reason fails, and the cause why it was a good limitation ceaseth and is taken away, the effect of it doth likewise cease. 3. The change of the term into thirds, doth not change the Estates tail of the younger Brothers, and cannot stand with the intention of the Deed of Trust: For I think it clear, if Charles, admitting he come to the Inheritance as owner, or if in the life of Henry he could get a Tenant of the Freehold of all, or any part of the Land to join with him, should then suffer a Recovery, it would bar Edward, Francis, and Bernard, of so much of the third part whereof such Recovery should be suffered, viz. of the whole Inheritance, and a third of the term and the residue (to wit) the other two parts would respectively cease, and be entailed as to the term, and be wholly in the respective disposition of Edward and the rest, and go to their Executors, not to their Issues or the Remainders. And yet upon long consideration of the Case, there is another, and a further ground of my doubt of what hath been said (viz.) not only because it is a new Case, and concerneth a Great and Noble Family, but on another and further ground observed and insisted upon by such great Opinions, contrary to what I have above observed (viz.) that it is not only a springing and contingent use to the younger Brothers, respecting them but because the Original Trust to Henry, viz. that the Trust to him and his Issue is, as to him and them, under a Limitation; and that not so long as he the Tenant in tail shall have Issue, but so long as the Lord Maltravers shall have Issue Male, and on that reason the Case is more doubtful. M— d. 1. I agree, that if a man have a term for a 1000 years, and Sir W. Ellis. he grants and demiseth this to one and the Heirs Males of his body, the Remainder to another and his Heirs, that this term cannot be entailed, nor a Remainder limited upon it; and that upon the death of the party to whom the term was so given, it shall go to his Executors as a Chattel, and not to his Heirs Male. 2. I do conceive it will not be denied by any, that if there be a long term for years, for a 1000 years, more or less in trust, and a man purchases or settles the Inheritance to the use of himself for life, the Remainder in Tail, the Remainder in Fee, and declare that the trusts of the term shall wait upon those Estates, and fall in with them. But that this trust of the term shall go along with all the Estate, and shall not be merged in any of them, and this trust shall not go to an Executor, but shall go along with the Estate, and if the tenant in tail die without Issue, it shall go along with the next Remainder man in tail, and after his death without Issue, it shall go to him in Fee simple, and attend all the Estates in Remainders, be they never so many. And this, I conceive, is the common course in Chancery to incorporate such trusts to go with all the Estates. This is not an absolute Trust for Henry and the Heirs Male of his body, but a limited and qualified Trust as long as Duke Thomas' elder Brother lived, and hath Heirs Males of his body, and until the Earldom of A. doth come unto him; so as by the death of Duke Thomas without Issue, the Trust to Henry, which was but a limited Trust, is now determined and vanquished as to Henry. As this was a contingent trust in Henry, but in Case Tho. was alive, and had issue when the term was to begin, so the continuance and duration of the trust of the term, was but to last until the Earldom came unto him; and it is the stronger, for that this trust ends in Henry by way of Limitation. Query. How long shall Henry and his Issue have this Trust? Answ. Until Thomas die without Issue Male, and the Earldom of A. come unto him, both which hath happened, so as the trust for Henry and his Issue is ended by way of limitation, and is now disposed over to others, as it may well be so, as this is a new Trust that by a contingent subsequent Declaration takes away the Trust from Henry, and settles a new Trust in the younger Children; and it is to be considered, that Henry is to have the Trust of this term, not so long as he shall have Issue, but so long as the Lord Maltravers shall have Heirs Male, so as that makes it a collateral Limitation or Determination of the said Estate. 4. The Equity and Justice of this Trust carries much weight with me, and that condition the Lord Maltravers was in: It was fit to settle the Trust in Henry, so long as the Lord Maltravers had Heirs Male of his body, and if they failed, and that the Earldom of A. and great accession of Estate to come to Henry, it was a great reason that the younger Children should be provided for and taken notice of. And it will not be easy to blow off and overthrow a Trust in a Court of Equity, contrary to the express mind and intention of him that made it, for the provision of they younger Children, especially it being made with so much Justice and Reason, wherein he hath both a respect for his Honour's Family and younger Children. Obj. There is no Objection against all I have said, which seems prima fancy to carry weight with it; and that is, when the legal interest is come to Henry, and he is Tenant entail in possession, and suffers a common Recovery, and bars all the Remainders Entail. Query. How can this trust which is an Accessary follow Estates? Answ. To which I answer first, If the Trust had been to follow and wait upon the Estate, this Objection had been the stronger; but this trust is not absolutely to wait upon Henry's Estate, but so long as Duke Thomas hath Heirs Male of his body, and until the Earldom of A. come to him, both which are happened, he continues still Tenant Entail, and yet this Interest is determined in the trusts. Secondly, this is a future contingent Interest that now is happened to the younger Brothers, which cannot be barred, and it may be resembled to Pell and Brown's Case, 2 Cro. 590, 591. A man demiseth his Land to his second Son Thomas and his Heirs, and if he die without Issue, leaving William his elder Brother, than William should have it in Fee; it was adjudged that this was a Fee Simple in Thomas the second. And though regularly one Fee cannot descend on another; yet this being a future contingent Interest that the Devise of the Fee Simple to William his eldest Son. Another great Question was, Thomas the second Son suffered a common Recovery, whether this did not bar the future contingent possibility of William? And it was adjudged it did not. Now here is as much a future contingent possibility of a Trust, as there was of an Estate and more, and therefore there is much reason that the future contingent possibility of a Trust should not be barred by a common Recovery, as in that Case. And as to that which is said, that an Accessary cannot be without a substance, and the Estates of the younger Children is to succeed, and yet they have no proper Estate, for Henry is now Tenant, so as this is a personal trust for the younger Children independent of their Estates; and if so, then clearly this Recovery cannot bar their Estates. Another reason why a Court of Equity should help and interpose in this Case, may be, because the Estate for years was conveyed by Marriot in breach of the Trust, which a Court of Equity ought to maintain and support as much as they can. First, Because Marriot and the now Duke are not Purchasers for a valuable Consideration. Secondly, They came in with privity and had notice of the Trust. And I conceive may and will, notwithstanding these Acts, make good these Trusts for the younger Children; and if this be a new doubtful Case, certainly I conceive it is the surest and safest way for a Court of Equity to make good the intention of him that made it, and to preserve the Trust for the younger Children. William Ellis 26 Feb. 1677. De Termino S. Hill. Anno Reg. Car. 2d Regis XXXIII & XXXIV Anno Dom. 1681. Martis 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 upwards; after whom the Lord Chancellor also delivered his Opinion: 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 Barony of Grastock, which was made by Henry Frederick Earl of Arundel, and upon the Bill, Answers, Deeds, and other Passages 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 after the death of the Countess, there is a term for years limited to my Lord of Dorchester and other trusties 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 entail Male, with the last Remainder 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 Inheritance, and the Profits of the Barony of should be received 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 body should be living; but in case he should die without Issue Male in the life of Henry Howard, not leaving his Wife ensient with a Son, or in case after the death of Thomas without Issue Male, the Honour of the Earldom of Arundel should descend to Henry Howard, than he and his Issues to have no benefit 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 Limitations after specified (viz.) if Thomas Lord Howard had any Issue Male or Heirs Male of his body (living Henry Howard) than the trusties 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 Howard, 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 Manors with cross Remainders to the five Brothers, than 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 Dorchester 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 Praecipe, 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 surrendered and quite gone. 2. The second ground was the common Recovery suffered, which they say barred the remainders which the other Brothers 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 Remainder. As to the first, that by the assignment of Marriot to Henry Howard, the whole Term was surrendered; and being so surrendered, hath no existence 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 Inheritance, 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 recompense for it; therefore 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 Brothers: 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 Inheritance; 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 Brother's death without Issue, should come to him; then to the Plaintiff, which doth convey the Estate of the term in a different Channel, from that in which the Inheritance is settled; 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 incident to any Estate, as this would do here, if it attended the Inheritance; but being only 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 Howard and the Heirs Males of his body shall receive the Profits 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 younger Brothers upon this Contingency, are absolutely void in the first Creation, and are gone without the Surrender; and that upon this Recovery Henry Howard, now Duke of Norfolk, aught 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 settled, therefore it were in vain to tell you the steps taken towards it. That the devise 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 only for Life, the Cases are very full in it. On the other side, where there is a limitation of a Term to one and the Heirs of his body, there a positive Limitation of the Estate over, after his death without Issue, that I think also is as fully declared to be void. I shall not cite Cases at large, but only 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 Abridgements, 1 Part Tit. Devise fol. 611. 11 Car. 1. Leventhorp and Ashby's Case B. R. It is said, that the Remainder of a Term to C. after it is limited to B. and the Heirs Males of his body, is a void Remainder; and fol. 613. he puts down the reason why the Remainder is void, because the Limitation to one and the Heirs Males of his body is a full disposition of the Term. And if such Limitations over were permitted, it would create perpetuities, which the Law doth abhor. and Cornishes Case Croke fol. 230. There it is resolved, that the Devise of a Term in such a manner with Limitations after one another, to make a perpetuity, cannot be good: For, says the Book, to limit a possibility, and to limit the Remainder of a term, after a dying without Issue, stands not with the Rules of Law. Now to bring this Case within these Rules, that if there be the Trust of a term to a man and the Heirs of his body, no Limitation can be over. I say then, if this Estate be so limited to my Lord Duke by the name of Henry Howard, the other will follow when there is a Limitation Entail, (though it cannot be properly styled Entail of a Term, yet it is a Disposition of that Term as long as the Tail lasts) then there can be no Limitation over. And as to that I think, as the Deed is penned, it may well be stood upon, that here is an Estate given to Henry and the Heirs Males of his body: For though the Deed says, until by the death of Thomas without Issue, the Earldom of Arundel shall descend upon him, yet the first Limitation, I think, shall stop at the Heirs Male of his body, and the Remainder over shall be then void. But I will not stand upon that, because I think I shall not need it, but admit (until by the failure of the Issue of Thomas the Earldom come to him) makes it not an Estate to Henry and the Heirs of his body directly, yet it gives an Estate to him and the Heirs of his body, as long as Thomas has any Issue of his body, and that I count to be all one as to the Operation of Law; for each of the Estates must determine upon the persons dying without Issue, which is too remote a Condition to limit the Remainders of a Term upon. And this until he die without Issue, and as long as he shall have Issue, are terms Synonimous in my Opinion; and so, it being a Limitation to him and his Heirs of his body, as long as Thomas liveth, and hath Issue of his body, it cannot be limited over, and the rather upon comparing the former part of the Deed, where there is an expression, that it was intended the Estate should remain in my now Lord Duke, so long as Thomas lived, or had any Issue of his body. Therefore, I say, there being in my opinion no difference as to operation of Law, between the Limitations to a man and the Heirs of his own body, and to a man and the Heirs of his body, during the life of another and the Heirs of his body, there can be no difference in the resolution. It is as possible a disposition of the Term during the continuance of an Entail as the other, and therefore no Remainder can be limited over. But now the doubt in this Case, that is made, ariseth upon this point, that this Limitation over to the Brothers, is upon a mere Contingency, and whether that be good, I think, is the main Question. And truly upon the reasons of Child and Baily's Case, I cannot think it is a good Limitation; that Case has been so often reported, that I need not put it at large. In short, this it was; A Devise by A. of a Term to William his eldest Son and his Assigns; and if he die without Issue, then to Thomas his youngest Son: there the Judges of the Kings-Bench did first deliver their Opinion, that this was a void Limitation to Thomas. And after it came into the Exchequer-Chamber, and there, by the Opinion of ten Judges, it was affirmed, and the reasons of the Judgement are not what was alleged 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 Council, that the Term was given to him and his Assigns, was only an Answer to a Case put in the argument upon Child and Baily's Case, which was the Case of Rhetoric and Chapel, Hill. 9 Jac. R. 889. B. R. which was cited by my Lord Chief Baron Tanfield, against the resolution of Child and Baily's Case, to difference it from the Case then before them. And though it was urged in Child and Baily's Case, that it was given upon a Contingency to the younger Son, which would soon be determined, and end in a short time; yet that weighed not with the Judges, but that they ruled it to be a void Limitation; and I met lately with a Judgement in the Common-pleas, which crosseth that Case of Rhetorics and Chappells, it was Hill. 31 and 32 Car. 2. Reg. 1615, Gibson's and Sanders' Case; Matthews possessed of a long Term of years, having Issue a Son and three Daughters, makes his Will, and devises his Chattel-Leases to his Son, and if that Son die before Marriage, or after Marriage without Issue, that then they should go to the Daughters. The Son doth Marry, and dieth without Issue, the Daughters his Executrixes, against whom an Action of Debt is brought upon a Bond, they plead no Assets; and upon a special Verdict, the Question being whether this were Assets in their hands, it was adjudged it was. In the report of that Case, there are many expressions of the Courts unwillingness to extend these Devises and Dispositions of Terms, further than the Judges had gone already. The authority of this Case doth much strengthen the authority of Baily's Case, because it doth thwart and oppose the Judgement in Rhetoric and Chappell's Case. There was also started at the Bar in Pell and Brown's Case, that a Fee upon a Fee, arising upon such a proximate Contingency, as might happen in so short a time as a Life, was a good Limitation. It is very true, that Case is so adjudged; but I think there might be such reason of difference urged between the disposition of a Fee-Simple, and of a Term; for a Term may be qualified as to a man and his Heirs until a marriage take effect; but the qualifying of a disposition of a Term cannot be, because when once a Term is given, the qualification comes too late. I do think that there have been Cases in this Court, where a Term has been limited to one and the Heirs Males of his body, upon a Contingency, to happen first with Limitations over, if that Contingency do not happen, that has been a good Limitation. As thus; if it be limited to the Wife for life, and then to the eldest Son, if he overlive his Mother and the Heirs Males of his body, the Remainder over to a younger Son there, if the eldest Son die in the life of the Mother, the Limitation to the second Son may be good. But if there be an instant Estate-tail created upon a Term, with Remainders over, though there be a Contingency as to the expectations of him in the Remainder, yet there is such a total disposition of the Term, as after which no Limitations of a Term can be. For that Objection out of Pell and Brown's Case, there is no such sure Foundation to build upon in the point of a Term, because that Case itself has been controverted since that Judgement given, in a Case between Jay and Jay, in styles Reports, 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 Perpetuity, which the Law will not admit; but if it be upon a contingent Fee-simple it is otherwise; but fol. 274, where it is spoken to again by Latch; he argued that it was not a good Limitation; and though he doth cite and confess Pell and Brown's Case to be adjudged quite contrary to what he argued, yet he tells you, that the Judges did find such Inconveniences arising upon it, that the Court was divided upon a like Case; and says further, that within nine years after that Judgement, 21 Jac. it was made a flat Query in the Sergeants Case; and adds moreover, that it hath been ever since disputable, and citys a Case and gives you a Roll, but not the Parties names, Mich. 37 and 38 Eliz. C. B. Rol. 1149, wherein says the Book, after solemn Arguments both at Bar and Bench, it was adjudged quite contrary to Pell and Brown's Case; but admit that Case to be good Law, where will you stop, if you admit the limitation of a Term after an Estate-tail, where shall it end? for if after one, it may as well be after two; and if after two, then as well after twenty; for it may be said, if he die within 20 years without Issue, and so if within 100, and there will be no end; and so a Perpetuity will follow. It was said at the Bar, it will be hard to frustrate the intention of the Parties: To that I answer, Intention of Parties not according to Law are not to be regarded. It was the Intention in Child and Baily's Case, that the younger Son should have it; and so in Burgesses Case, it was the Intention the Daughter should have it; and so in gibson's and Sommers's Case, it was intended for the Daughters, yet all these Intentions were rejected; and therefore as to that, it is not at all to weigh any thing in the Case. It has also been objected, but then here is a contingency that has actually happened upon Thomas' death without Issue, and so the Honour is come to Henry, I say the happening of the Contingency is no ground to judge. The Limitation good upon it was not good, if the other Limitation had stood out, and that I conceive is our Case. So then for that I think these expositions have gone as far already as they can; for my part I cannot extend it any further, and therefore I conceive in this Case, the Plaintiff has no right to this Term, but the Decree ought to be made for the Defendants. The Argument of the Lord Chief Justice North I Shall not trouble your Lordship to repeat the Case again, for it has been truly opened by my Lord Chief Baron, nor shall I trouble you with any long Argument, because I think there is but one point in the case, and that a short one: The only point is this, Whether this contingent Trust of a Term limited to Charles, upon the dying of Thomas without Issue Male, whereby the Honour did descend to Henry, be good in point of Creation and Limitation; for the other two points will not trouble the Case: For as to that point of the Recovery, in case this being not a good Limitation in point of Creation, it will make nothing in the Case, for it is gone without the Recovery. In case it be good in point of Creation, the Recovery will do nothing; for that supposeth it to go along with the Inheritance: And if this take effect, than it will suffer no prejudice by the Recovery. Then for the assignment of Marriot to the Duke, that signifieth nothing in the Case; it doth indeed show, that if your Lordship shall decree this Cause for the Plaintiff, than he hath committed a breach of Trust; but if for the Defendant, than it is of no weight at all. If the Law be for the Plaintiff, than he must answer for this breach of Trust, and so must the Duke; for it is a surrender to a person that had notice of the Trust. So that the Question is barely upon that single first Point, whether it be a good Limitation upon the Contingency to Charles, this which they call a springing Trust. My Lord, I take the Rules of this Court, in cases of Trusts of Terms, to be the same with Rules of Law in Devises of Terms: For I conceive the Rules of Law to prevent Perpetuities; are the policy of the Kingdom, and aught 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 itself; and therefore I cannot see, why the Trust of a Term upon a voluntary Settlement, should be carried further in a Court of Equity, than the Devise of a Term in the Courts of Common Law. It is true, where there is a long Term in being upon Mortgage, and as a security which is determined, it is of great conveniency that it should be kept on foot to protect the Inheritance; and so it will lie still to wait upon the Inheritance, and thereupon in many Descents it will go from Heir to Heir, and that upon a particular consideration, to attend and protect the Inheritance: But for a mere Chattel to go from Heir to Heir, is not the same case; nor do I see any reason why this Court should carry such a Chattel any further, than Devises of terms are carried at Common Law. Now let us see, and a little consider, what those Rules are, and how they are appliable to this Case: In both cases a Term may be limited for life to one, with Remainders over, though in the bare consideration of Law, an Estate for life is a greater Estate than a Term for years; but in case of an Estate-tail there can be no such thing; therefore in Burgesses Case, the Trust of a term is limited to A. for life, the Remainder to his Wife for life, the Remainder to the first, second, and other Sons successively, and the Issue of their bodies: and for default of such Issue, to the Daughters of A. and their Issue, the Remainder to the right Heirs of A. A. had no Son at that time living, nor after; but the Remainder over was to the Daughter of A. in being. It was strongly urged, that the Daughter should have the Trust vested in her, and that the Trust for the Daughter should close with the Estate for life till A. should have a Son. But because there was a Limitation to the first Son of A. and the Issue of his body, and the Remainder of the Daughter was but to take place, after that Son died without Issue, and so the others, though it was not to a Son then in being. But his Estate was in contingencies which did never happen, yet the Court did not allow of any such thing, as any Remainder that the Daughter should have, but made a Decree for the execution of the Devisee; so that it is clear, there can be no direct Remainder of the Trust of a term upon an Estate-tail. The Question than is, whether there can be any contigent Remainder for this, for this Case depends upon that consideration; i. e. it is limited upon a Contingency, if such a thing should happen in the life of a man, and so it is a springing Trust and good that way. My Lord, I take it in this case, where there can be no direct Remainder, there can be no contingent Remainder, though it happen never so soon: Therefore, if a Term be limited to one and his Heirs of his body, and he die without Issue of his body within two years the Remainder over, there can be no such Remainder limited at all, and therefore no contingent Remainder; for this Remainder is limited at the end of an Entail, 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 only 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, etc. then the Remainder over, than it had been clear the Contingency had been limited upon the expiring of the Entail; 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 man's dying without Heirs, which to lose his Fee-simple he must do, comes not under the intention of the Law as of a Contingency. An Estate for life, in the judgement of the Law, is of longer duration than a Term for years; and the Rule in Child and Baily's Case is firm, that the expiring of the Limitation of a Term in Tail within the life of a man, will not make good a Limitation of the Remainder over, which I hold to be a good Rule, and the reason of it, I conceive, will reach to this Case: For what is the difference? here is a Contingency indeed; but it is to have an Estate-tail expire within one Life, which I take to be the same case. Suppose the Term had been limited to Henry and the Heirs Males of his body, so long as Thomas shall have Heirs Male of his body, that would sure have cut off the Remainder; and what is the difference? For it doth depend upon Thomas dying without Issue, whereby the Earldom should descend, then when it is limited to Henry and the Heirs Males of his body. And if Thomas die without Issue in the life of Henry, then over this can no more abridge it, than if he had said, if Henry die without Issue during the life of another man. So that, I think, the whole Term is swallowed in the Estate-tail upon this consideration, and there can be no Remainder of it, no executory Devise, nor any springing Trust to Charles upon this Contingency; and, my Lord, upon that reason, I think this Settlement fails, and is disappointed as to the younger Brothers. If it had been limited to Henry for Life only, and no further, then let the Contingency have been what it would, that were to happen in his life, if complicated with several ascendants, yet it should be good in Remainder, because the Law doth allow a Remainder directly upon an Estate for Life; and so it would also in Contingency if that were to happen during the continuance of the particular Estate: But I take this to be a step further than any of our Resolutions in Law have gone yet, and therefore I cannot see reason to extend the Exposition any further; but am of opinion it fails in point of Limitation, and aught to be decreed for the Defendant. 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 settled the Inheritance by one Deed Entail 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 determination 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 any 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 intentions 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 advanced by their Father in case it should so happen. It was a reasonable 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 commence and go over to Charles, that would certainly have been good, and carried the Estate to Charles upon that Contingency; 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 settled so often) they are not capable of limitation 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 than it is capable of such a Limitation in that Case, with this restriction; that is, if the Inheritance be so limited; for though it be attendant ever so much upon the Inheritance, yet that attendance cannot make it capable 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 without Issue, that Term shall go over; it is not capable of any Foreign 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 Inheritance, and a 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 Limitation 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 or Inheritance to support it. And then besides, it could not have that reason that the Law intends for its permitting such Limitations to Terms attending 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 only 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 Inheritance. I must look upon this indeed as a new Case of Novel invention; 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 Inheritance; and if there should be such a Limitation admitted, such a foreign Limitation as this is, (I call it Foreign, 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 men's 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, presently it was discerned, there was the same reason, for after twenty men's 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 encumber Estates and mightily entangle Lands. This is certain, such an allowed Limitation would add a greater check to Estates, than ever was made by Limitations of Inheritance: For when an Estate of Inheritance was limited to a man and his Heirs Males of his body, with Remainders over, and a Term was limited accordingly to wait upon the Inheritance. In that Case, he that had the first Estate-tail, had full power over the Term, to alienate it if he pleased; for it is not an Estate within the Statute De Dominis, and I doubt not that had a great Influence upon the Judges, when they made the difference between Terms for years in Gross, and Terms attendant upon the Inheritance. For Terms in Gross, they could not be aliened in such a Case; but Terms attending upon the Inheritance, though under such Limitations, the parties could alien them. But now if this Limitation in question were good, than 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, etc. would have been alienable. I have seen the time often when they have refused to carry Cases further than the Precedents have been in former times; and peradventure it would be dangerous if we should do so here; and it seems to me to be an odd kind of Estate, as this Limitation makes it; and if such a construction as the Plaintiff would have should be made, it would bring it under a great uncertainty. To take this Estate as it stands in Henry and the Heirs Males of his body, it is by this Limitation made, and so indeed, I think it is a Term that waits upon the Inheritance: But if this that is contended for be admitted to be a good Limitation upon the Contingency of Thomas' dying without Issue Male, than 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' life-time, than it is a Term attendant upon the Inheritance again. If Charles die in the life of Henry, it goeth to the Executors. If Henry in the life of Charles, it goes to the Heirs. Therefore I think that this Estate being limited in another way, and being it would endure a strain further than any yet has been attempted, and it being to commence upon Thomas' dying without Issue Male, and not attendant upon any Inheritance, it is such an Estate as the Law cannot allow of, but void in Limitation and Creation; and so I take it the Plaintiffs Bill ought to be dismissed. THE Lord Chancellor NOTTINGHAM'S ARGUMENTS. The First Argument. THIS is the Case. The Plaintiff, by his Bill demands the benefit of a Term for two hundred Years, in the Barony of Greystocke, upon these settlements. Henry Frederick 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 Katherine: Thomas Lord Maltravers, his eldest Son was Non compos Mentis, and care is taken to settle the Estate and Family, as well as the present circumstances will admit. And thereupon there are two Indentures drawn, and they are both of the same date. The one is an Indenture between the Earl of Arundel of the one part; and the Duke of Richmond, the Marquis of Dorchester, Edward Lord Howard of Eastcricke, and Sir Thomas Hatton, of the other part: it bears date the Twenty first day of March, 1647. Whereby an Estate is conveyed to them and their Heirs; To these uses; To the use of the Earl for his life. After that to the Countess his Wife for her life, with power to make a Lease for 21. Years, reserving the ancient Rents. The remainder for 200. Years to those trusties, and that upon such trusts, as by another Indenture intended to bear date the same day the Earl should limit and declare; and then the remainder of the Lands are to the use of Henry, and the Heirs Males of his Body begotten, with like remainders in Tail to Charles, Edward, and the other Brothers successively. Then comes the other Indenture, which was to declare the Trust of the Term for 200 Years, for which all these preparations are made, and that declares that it was intended this Term should attend the Inheritance, and that the profits of the said Barony, etc. should be received by the said Henry Howard, and the Heirs Males of his Body so long as Thomas and any Issue Male of his Body should live, (which was consequently only during his own life, because he was never likely to Marry) and if he die without Issue in the life-time of Henry, not leaving a Wife privement Enseint of a Son, or if after his death, the Dignity of Earl of Arundel should descend upon Henry; Then Henry or his Issue should have no farther benefit or profit of the Term of 200 Years. Who then shall? But the benefit shall redound to the younger Brothers in manner following. How is that? To Charles and the Heirs Males of his Body, with the like Remainders in Tail to the rest. Thus is the matter settled by these Indentures; how this Family was to be provided for, and the whole Estate governed for the time to come. These Indentures are both sealed and delivered in the presence of Sir Orlando Bridgman, Mr. Edward Alehorn and Mr. John Alehorn, both of them my Lord Keeper Bridgman's Clerks; I knew them to be so. This Attestation of these Deeds is a Demonstration to me they were drawn by Sir Orlando Bridgman. After this the Contingency does happen: for Thomas Duke of Norfolk dies without Issue, and the Earldom of Arundel as well as the Dukedom of Norfolk descended to Henry now Duke of Norfolk, by Thomas his death without Issue: presently upon this the Marquis of Dorchester, the surviving Trustee of this Estate, assigns his Estate to Marryot, but he doth it upon the same Trusts that he had it himself: Mr. Marryot assigns his interest frankly to my Lord Henry, the now Duke, and so has done what he can to merge and extinguish the Term by the signing it to him, who has the Inheritance. To excuse the Marquis of Dorchester from cooperating in this matter, it is said, there was an absolute necessity so to do; Because the Tenants in the North would not be brought to renew their Estates, while so Aged a person did continue in the Seignory, for fear, if he should die quickly, they should be compelled to pay a new Fine. But nothing in the World can excuse Marryot from being guilty of a most wilful and palpable Breach of Trust, if Charles have any Right to this Term: so that the whole contention in the Case is to make the Estate limited to Charles, void, void in the Original Creation, if not so, void by the common Recovery suffered by the now Duke, and the Assignment of Marryot. If the Estate be Originally void, which is limited to Charles, there is no harm done; but if it only be avoided by the Assignment of Marryot, with the concurrence of the Duke of Norfolk, he having notice of the Trusts, then most certainly they must make it good to Charles in Equity, for a palpable Breach of Trust of which they had notice. So that the question is reduced to this main single point, Whether all this care that was taken to settle this Estate and Family, be void and insignificant; and all this provision made for Charles and the Younger Children to have no Effect. I am in a very great strait in this Case: I am assisted by as good advice, as I know how to repose myself upon, and I have the fairest opportunity, if I concur with them, and so should mistake to excuse myself, that I did errare cum patribus; but I dare not at any time deliver any Opinion in this place, without I concur with myself 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 men's Rites and Properties, in point of disposing of their Estates, as to most conveyances, made and settled in the late times and yet on foot, that being afraid I might shake more settlements than I am willing to do, I am not disposed to keep so closely and strictly to the Rules of Law as the Judges of the Common-Law do, as not to look to the Reasons and Consequences that may follow upon the determination of this Case. I cannot say in this Case, that this Limitation is void, and because this is a point, that in Courts of Equity (which are not favoured by the Judgements of the Courts of Law) is seldom debated with any great Industry at the Bar; but where they are possessed once of the Cause, they press for a Decree, according to the usual and known Rules of Law; and think we are not to examine things. And because it is probable this Cause, be it adjudged one way or other, may come into the Parliament, I will take a little pains to open the Case, the Consequences that depend upon it, and the Reasons that lie upon me, as thus persuaded, to suspend my Opinion. Whether this Limitation to Charles be void or no, is the Question. Now, first, these things are plain and clear, and by taking notice of what is plain and clear, we shall come to see what is doubtful. 1. That the Term in Question, tho' it were attendant upon the Inheritance, at first, yet upon the happening of the Contingency, it is become a Term in gross to Charles. 2. That the Trust of a Term in gross can be limited no otherwise in Equity, than the Estate of a Term in gross can be limited in Law: for I am not setting up a Rule of Property in Chancery, other than that which is the Rule of Property at Law. 3. It is clear, That the legal Estate of a Term for Years, whether it be a long or a short Term, cannot be limited to any Man in Tail, with the remainder over to another after his death without Issue; That is flat and plain, for that is a direct perpetuity. 4. If a Term be limited to a Man and his Issue, and if that Issue die without Issue, the remainder over, the Issue of that Issue takes no Estate; and yet because the remainder over cannot take place, till the Issue of that Issue fail, that remainder is void too, which was Reeves Case; and the reason is, because that looks towards a perpetuity. 5. If a Term be limited to a Man for life, and after to his first, second, third, etc. and other Sons in Tail successively, and for default of such Issue the remainder over, tho' the contingency never happen, yet that Remainder is void, tho' there were never a Son then born to him; for that looks like a perpetuity, and this was Sir William Backhurst his Case in the 16. of Modern Reports, 115. this King. 6. Yet one step further than this, and that is Burgis' Case. A Term is limited to one for life, with contingent Remainders Modern Reports, 115. to his Sons in Tail, with remainder over to his Daughter, tho' he had no Son; yet because it was foreign and distant to expect a Remainder after the Death of a Son to be born without Issue, that having a prospect of a perpetuity, also was adjudged to be void. These things having been settled, and by these Rules has this Court always governed itself: But one step more there is in this Case. 7. If a Term be devised, or the Trust of a Term limited to one for Life, with twenty Remainders for Life, successively, and all the persons in esse, and alive at the time of the Limitation of their Estates, these tho' they look like a possibility upon a possibility, are all good, because they produce no inconvenience, they were out in a little time with an easy interpretation, and so was Alford's Case. I will yet go farther. 8. In the Case cited by Mr. Holt, Cotton and Heath's Case, a Roll. abr. tit. devise, 612. Term is devised to one for 18. Years, after to C. his eldest Son for Life, and then to the eldest Issue Male of C. for Life, tho' C. had not any Issue Male at the time of the Devise, or death of the Devisor, but before the death of C. it was resolved by Mr. Justice Jones, Mr. Justice Crook, and Mr. Justice Berkley, to whom it was referred by the Lord Keeper Coventry, that it only being a contingency upon a Life that would be speedily worn out, it was very good; for that there may be a possibility upon a possibility, and that there may be a contingency upon a contingency, is neither unnatural nor absurd in itself; but the contrary Rule given as a Reason by my Lord Popham in the Rector of Chedington's Case, looks like a Reason Co. 1. 156. of Art; but, in truth, has no kind of Reason in it, and I have known that Rule often denied in Westminster-Hall. In truth, every Executory Devise is so, and you will find that Rule not to be allowed in Blanford and Blanford's Case, 13. Jac. 1. part of my Lord Rolls, 318. where he says, If that Rule take place, it will shake several common Assurances: And he citys Paramour's and Yardley's Case in the Commentaries where it was adjudged 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 Limitation 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' Case: for he says, That if a Term be devised to one Co. 10. 87. and the Heirs Males of his Body, it shall go to him or his Executors, 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 Abridgement, Title Devise, fol. 611. for these Words are not the Limitation of the time, but an absolute disposition 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 Argument 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 entire Estate, 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 Proviso, which makes it an absurdity to say, that the same Proviso, upon which the Estate ariseth, should determine that Estate 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 human 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 easy 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 limited after a Fee simple, so is the express 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: Therefore if a Devise be to a Man and his Heirs, and if he die 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 Resolution Cro. Mich. 18 Jac. 590 did take its Original from Bells and Brown's Case; but it did not so, the Law was settled before; you may find it expressly resolved 19 Eliz. in a Case between Hind and Lion, 3 Leonard. 64. 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 judgement in 38 Eliz. grounded upon the Reason of Wellock and Hammond's Case cited in Beraston's Case, where it is said, Crook, 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 Bells and Brown's Case, which was in 18 Jac. It is true, it was made a Question afterwards in the Sergeants 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 Sergeants, is not a governing Opinion to decide the Law. It was also adjudged in Hil. 1649. when my Lord Rolls was Chief Justice, and again in Mich. 1650. and after that indeed in 1651. it was resolved 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 perpetuity. 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 shown. Thus it is agreed to be by all sides in the Case of an Inheritance; but now say they, a Lease for Years, which is a Chattel, 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 introduced, 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 happened 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 settled as a Jointure 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 yourself and your Executors, 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 whether 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 without Issue, then to Charles, there it had been a void limitation to Charles: if then the addition of those words, If Thomas die without Issue in the life of Henry, etc. have not mended the matter, than 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 myself very much for that which I am doing. Suppose the Proviso had been thus penned, And if Thomas die without Issue Male, living Henry, so that the Earldom of Arundel descend upon Henry, than 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 trusties, for the Benefit of Charles in Tail. This he thinks might have been well enough, and attained the end and intention of the Family, because then this would not be a Remainder 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 laughed 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 Interest, is not to be regarded: for whereas this will be no reason any where else; so I shall show 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, provided, Dyer, fol. 74. 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 Dyer, f. 277 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 Remainder; and that was the first time that an executory Remainder Dyer, f. 328 Dyer, f. 358. 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 remainder 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 shown: but after this was seen to multiply the Chancery Suits, than 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 Estates 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 attempted 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 choke the Plaintiffs Title to this Term, and that is the resolution in Child and Baylie's Case: For it is upon that Judgement, 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 reported 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 Limitation of a Term in Tail, with Remainder over, which cannot be good. But if it be as Justice Jones has reported it, fol. 15, than 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, Cro. Hil. 15. Jac. 459. in his abridgement, Title Devise, 612. There it is, a Term of 76 Years is devised to Dorothy for life, then to William and his Assigns all the rest of the Term, provided if William die without Issue then living, then to Thomas; and this is in effect our present 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 Remainder could take place, for the Term was gone. 4. He might have had Issue, and that Issue might have assigned, 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 Abridgement. The Record of that Case goes farther, for the Record says; 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 multiply Contingencies. It farther appears by the Record, that the Father's 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 died; the Mother held it till the 1 of K. James, and then she died; 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 Alienations of the Term to Purchasers, for a valuable Consideration, and the Term renewed for a valuable Fine paid to the Lord. And do we wonder now, that after so long an acquiescence as from 10 Eliz. to 14 Jacob, and after such successive Assignments and Transactions, that the Judges began to lie hard upon Thomas, as to his Interest in Law, in the Term, especially when the Reasons given in the Reports of the Case, were legal Inducements to guide their Judgements, 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 show, 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 allowed 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 show 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 declared 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 die without Issue, living the Father or Mother, than 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 assisted by Judge Twisden and Judge Rainsford, that the Remainder to Edward was good, for the whole Term had vested in John, if he had survived; Yet the Contingency never happening, and so wearing out in the compass of two Lives in being, the Remainder over to Edward might well be limited upon it. Thus we see, that the same Opinion which Sir Orlando Bridgeman held when he was a Practizer, and drew these Conveyances 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 Reverence 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 Inconvenience, any danger of a perpetuity; and wherever 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 Devise to a man and his Heirs, and if he die without Issue, living B. then to B. is a naughty Remainder, that is Bells and Brown's 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 itself Evident, where it is Inconvenient, and God forbidden, 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 aught 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 trod upon the heels of the Inheritance. 2. Though it was always uncertain whether Thomas would die without Issue living Henry, yet it was morally certain that he would die without Issue, and so the Estate and Honour come to the younger Son: for it was with a careful circumspection always provided, that he should not Marry till he should recover himself into such estate of body and mind, as might suit with the honour and dignity of the Family. 3. It is a very hard thing for a Son to tell his Father, that the provision he has made for his younger Brothers is void in Law, but it is much harder for him to tell him so in Chancery. And if such a provision be void, it had need be void with a vengeance; it had need be so clearly void that it ought to be a prodigy if it be not submitted to. Now where there is no perpetuity introduced, no cloud hanging over the Estate but during a Life, which is a common possibility where there is no inconvenience in the Earth, and where the Authorities of this Court concur to make it good; to say all is void, and to say it here, I declare it, I know not how to do it. To run so Counter to the Judgement of that great man, my Lord Keeper Bridgman, who both advised this settlement; and when he was upon his Oath in this place decreed it good. I confess his Authority is too hard for me to resist, though I am assisted by such learned and able Judges, and will pay as great a Deference to their Opinions as any man in the World shall. If then this shall not be void, there is no need for the Merger by the Assignment or the Recovery to be considered in the Case: For if so be this be a good limitation of the Trust, and they who had notice of it, will palpably break it, they are bound by the Rules of Equity to make it good by making some Reparation. Nay, which is more, if the Heir enter upon the Estate to defeat the Trust, that very Estate doth remain in Equity infected with the Trust; which was the Case of my Lord of Thomond; so also was the Resolution in Jackson and Jackson's Case: So that to me the Right appears clear, and the Remedy seems not to be difficult. Therefore my present thoughts are, that the Trust of this Term was well limited to Charles, who ought to have the Trust of the whole Term Decreed to him, and an account of the mean profits, for the time by past, and a recompense made to him from the Duke and Marryot for the time to come. But I do not pay so little Reverence to the Company I am in, as to run down their solemn Arguments and Opinions upon my present Sentiments; and therefore I do suspend the Inrolment of any Decree in this Case, as yet: but I will give myself 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 Cancel. Sabbati 13 die Maij. Howard Versus Le Duc de Norfolk. THis Day was appointed for final Judgement in this cause, and it being called. Mr. Sergeant M. moved. My Lord we depend upon your Lordship in that cause for your Opinion. Mr. S. G. My Lord, in the Case of Howard against the Duke of Norfolk, I do not know whether I may have the Liberty to move this that I am going to offer. It stands now in the Paper now for your Lordship's Judgement, and therefore I speak this, that I now offer with great submission, if your Lordship will please to hear it. If you will please to allow my Lord of Arundel's Counsel the liberty of offering any thing further in the Cause. Possibly it will not become them to offer any thing that hath been said, but if they may be permitted to argue some new matter if they can find any. Therefore we that are for my Lord of Arundel, desire the liberty of having some little time till Mr. Keck (who is of my Lord's 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 shorthand Writers, that nothing can pass from us here, but it is presently made public, and tho' a Man doth not speak in Print, yet what he says shall be immediately put in Print; therefore because Mr. Keck desired it, and to justify my own Opinion, tho' I had appointed the first Tuesday in the Term, yet I gave till this day. It is but reason Mr. Keck should be heard, who has not yet argued it, and if any Man can convince me I am in an error, or make it appear to me, that I am mistaken in the Law, in the Opinion I have given, which as yet I see no cause in the World to change, God forbidden, but I should hear them, but on the other side, this cause must not everlastingly be put off, because my Lord Duke's Counsel are not here. Therefore I will give you a Weeks time further, but upon this Day seven-night, come or not come, I will give my Judgement in the Cause. Mr. Serj. M. If your Lordship pleases to put it upon the other side, unless they show cause, than the Opinion your Lordship has given to stand. Lord Chancellor, If my Opinion (which is under the prejudice of being contrary to that of the three Chief Judges) can be refuted, I am not ashamed to retract any error I may be convinced of, but truly at present, I see no colour to retract 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. Howard at the Bar, nor stirred by the Counsel. Mr. Serj. M. I hope we for Mr. Howard, shall be heard to justify your Lordship's Opinion. Lord Chancellor, What hath been said here at the Bench on both sides, has been taken in Shorthand, and made public, 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 satisfaction 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 therefore 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 Opinion, 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 Estate but what consists in Terms, shall be disabled from settling his Estate, so as to provide for the contingencies in his Family, that are in immediate prospect. I say it is a common 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 contingency 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 never 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 surprised, tho' withal, I must do Mr. Howard the Justice that he be not eternally delayed. Then the Day seven-night was appointed, but upon the continuance of Mr. Kecks illness, it was put peremptorily for Judgement on the first Saturday in the next Term. De Termino Trin. Anno Regis Car. II. 34 in Cancel. Howard verse. le Duc de Norfolk Sabbati 17 Junii. Anno Dom. 1652. MY Lord, we have nothing to do in that Mr. Serj. M. Cause, but to pray your Judgement. 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 Lordship's 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 apprehend 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 immediately concern the Limitation. For the Circumstances wherein they Differ was the Length of the Term, being almost Expired, 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 Limitation 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 Mother, than the remainder over this remainder was adjudged void. This is the same Case with ours, for in the Case the first remainder 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 contingent 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' 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 Limitation, that he should take or not. If he were Living at the time of the Death of Father and Mother, than he should take; If not, he should not take. There was no Interest vested in him till the Contingency happened, and so the Limitations will be different. And that is the Ground that is drawn up in the Decretal Order of the Cause, because this was a Contingent Limitation to John, and that never happening, it is all one, as if it had never been limited, and amounts, putting the Contingent Limitation, which never happened out of the Case, to no more than a Limitation to the Father and Mother for Life, the remainder over, which is well enough. This is that I have to offer, and I humbly submit it to your Lordship. Mr. Serj. M. And so we do, and pray your Judgement. Mr. R. I see they are pressing for your Lordship's Judgement, and I know not whether it will become me to interpose with any thing. Lord Chancellor, Say, say, for this is a Cause that deserves patience. Mr. R. No Man my Lord, can have any great encouragement to add any thing after all the Arguments that have been made in this Cause, or can hope to offer that which will be very material and new, but I desire to have leave to say this in short. My Lord, there be two Deeds by which this settlement is made, as a provision for the second Son of this Family, and the younger Children, and therein it doth perhaps appear, that if the Bulk of the Estate, and the Honour should come to the second Son, than the settlement of this part that is made upon the second Son, was intended to come to the now Plaintiff, and the younger Children. This is the Intention of the two Deeds. By the first Deed the Estate of Freehold and Inheritance is limited in Tail. By the second Deed the Trust is declared of the Term for 200 Years that is limited to Henry, and so over. And therein it differs from the Case of Wood and Saunders; For the Trust of the Term doth vest in Henry, till the Contingency happen, but in Wood and Saunders Case, there it is limited to the Father and Mother for 60 Years, if they lived so long, then to John and his Heirs Males, in Case he survive his Father and Mother, and the Trust to be assigned to him accordingly, and if he die without Issue in the Life of the Father and Mother, then to Edward his Brother. No Man can say that ever any thing here did vest in John; For it was but limited to him after his Father and Mother's life, in case he survived them, but it never vested in him, and so it differs from this Case. For here the Trust of the Term did vest in the Duke of Norfolk till the Contingency did happen. And as that is the difference between the two Cases, and I do apprehend it is a difference with great reason from Wood and Saunders Case, so that which I infer from it is this, That where the Trust of a Term is limited to a Man and his Issue, and his Heirs Males, and that vested in him, if he die without Issue, or which is much a stronger Case, tho' the Contingency be restrained within the compass of a life, or of a certain time that is to wear out in a reasonable distance, yet coming after a Limitation in Tail cannot carry the remainder over. For if you once admit it during one life, you must admit it during twenty lives, for the reason is the same as to twenty, as it is to one, if they be all in Being, and perhaps the reason will be the same as to twenty lives all in Being, and for the life of one person more. Then if the Trust of a Term where it is once vested in Tail, can never be well limited over, tho' restrained within the Contingent distance of a reasonable time. This Limitation to the Plaintiff can never be good. My Lord, I crave leave to offer your Lordship one Case or two; suppose that a Term for Years, or the Limitation of the Trust of a Term for Years (for I think there is the same construction made of both) be limited to J. S. and the Issue of his Body, and if J. S. die without Issue within 100 Years (for the purpose) or within twenty Years, then to go over to J. N. that cannot be apprehended to be good, but void; for there is no difference between 1000 or 100 or 20 Years, yet 20 Years is but a reasonable time, and not more in prospect than one or ten lives. If a Man limit the Trust of a Term, or a Term itself too J. S. and the Issue of his Body, and if he die without Issue before 21. then to go over to J. N. This a reasonable distance of time, and yet I believe this will not be allowed to be good and well limited over. And the reason is, where once a Term is limited to a Man and his Issue, this in a reasonable construction of Law carries the whole Term (for it was a good while before they gained the point of remainders after lives) and (if after it be said,) if he die without Issue within a 100 Years, or before 21. that restriction will not help it as we think. Then where is the reason or sense that it should be otherwise, if he die without Issue in the life of another person? Truly my Lord, it is very hard to find out a true difference between the Cases where the Restriction is, for the life of a certain person, and where it is upon a certain number of Years. My Lord, I would put this Case upon Wood and Saunders Case, which is the authority that is so much pressed upon us. Suppose that Case had been thus; to the Father for 60 Years, if he so long live; to the Mother for 60 Years, if she so long live, and then instead of that Limitation to John, in Case he survived his Father and Mother; suppose it had been to the first Son of the Father and Mother, and the Heirs of his Body, and if such first Son die without Issue in the life-time of his Father and Mother, than it should go over to another person. Had it then been good? surely no. What is the difference? Why this, it being to John, in case he survived his Father and Mother, nothing vested. But if it had been to the first Son, and the Heirs of his Body, and they have a Son, there it differs; for it is actually vested in him. And there the Limitation over to a stranger would not be good, even admitting the Case of Wood and Saunders to be . Another Objection your Lordship made, was about the necessary Limitations of the Trusts of Terms by Termers upon Marriage Settlements to a Man's 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 itself, as well as of an Inheritance. That will not reach our Case, therefore I need not say any thing to it, whether it would be so or no. But suppose this Case, there be two Brothers, the Eldest hath no Children, the younger Brother hath a Son, and is a going to Marry 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 Executors 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, whether 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 solemnly resolved. The resolution of which Case, and that also of Wood and Saunders, we submit to your Lordship's consideration. As for the intention of the Parties in this settlement, 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 other 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 ourselves out of a presumption, 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 pleased 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 pleased 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 Contingencies of his Family. That a settlement of a Term upon trusties to himself, till the Marriage take effect, and then over, shall be good; this might be resembled to Pell and Brown's 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 Contingency 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 happening, the death of Duke Thomas without Issue, it shall divest, 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, Bernard, etc. as well as for him. Now than 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 Inheritance, the Remainder over must be void in the very Creation. My Lord, I have observed, ever since I have had the honour to practise at this Bar, and very many particular instances might be given, that when the Judges have been upon the Cases called 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 manning's 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 Perpetuities, and are fond of Limitations tending to Perpetuities, not only in Inheritance, but in Terms for Years. After manning's 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, than 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 otherwise. 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 limited 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 Contingency happens: Can it then enure to the Plaintiff by way of springing Trust? surely no. In Wood and Saunders Case it never 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 barred, this Court I conceive, will not set them up again. Now in this Case before the Contingency happened, 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 Duke's behalf we now desire is, that your Lordship will be pleased to take some further time to consider of it, and deliver your Judgement 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 mistake 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 merely 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 mistake in calling this a Remainder, it is no such thing as a Remainder: 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 Inheritance 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 concerned in it join. 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 public, 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 within a Life as ours doth. And in our Case, my Lord, this Limitation 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 condition that determines the whole Trust as to Henry, and there it gins to be first a Limitation of a Term in gross. He that creates a Term attendant upon an Inheritance, may sever 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 subsequent. 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 happened, the Limitation of this Term to the Plaintiff is good, and we pray your Judgement 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 consider of it, but with very great willingness to change it, if it were possibe I have as fair and as justifiable an opportunity to follow 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 unexceptionable: 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 public 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 depends upon one and the same Reason. The Court is likewise 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 aught 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 Recovery 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 Limitations of the Trust of a Term, and the measures of the Limitations 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 Limitations made in this Settlement to Edward, etc. are all void, for they tend directly and plainly to Perpetuities, for they are Limitations 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 Authority 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 Remainders 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 settled (and Matthew manning's 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 tendency 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 Remainder 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 Resolution of Bells and Brown's 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 Hind and Lion, 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 Contingency? You may limit, it seems, upon a Contingency to happen 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 wherever any visible Inconveniece 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 Tendency to a Perpetuity, or a palpable Inconvenience. Oh, yes, Terms are mere 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 Estate but what consists in a Lease for years, being to Marry his Son, settled 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 future Limitation to the married couple good or bad? If any Man say it is void, he overthrows I know not how many Marriage-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 tendency to a Perpetuity, no visible Inconvenience? All Men are agreed, (and my Lord Chief Justice told us particularly 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, etc. 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 wonderful well, and my Lord of Arundel's intention might have taken effect for the younger Son. This is such a subtlety 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. Bells and Brown's 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 Remainder by the Mother, who was Executrix, are things that Rolls lay hold on as Reasons for the Judgement. 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 liberty as the Judges in Westminster-hall sometimes do, to deny a Case that stands single and alone of itself. 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 Resolution; for the Remainder of a Term of seventy six years is called in question when but fifteen years of it remained, and after 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 Conveyance; but it is absolutely a Resolution quia volumus. For it disagrees with all the other Cases before and since, all which have been otherwise resolved; but it is a Resolution, I say, merely because it is a Resolution. And it is expressly 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 clipped and minced 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 happening 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 Roll. abr. tit. Devise 612. B. for life, the Remainder of the first Issue Male of B. which is a Contingent Estate after a Contingency, and yet adjudged good, because the happening of the Contingency was to be expected in so short a time. Now that Case was adjudged by my Lord Keeper Coventry, Mr. Justice Jones, Mr. Justice Crook, and Mr. Justice Berkley, as Wood and Saunder's Case was by my Lord Keeper Bridgman, Mr. Justice Twisden, 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 myself to be supported by seven Opinions in these two Cases 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 sense in that. Now if Charles howard's 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 Consideration, and this Settlement was the result of it, made with the best Advice they could procure, and is as prudent a provision as could be made. For the Son now to tell his Father 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 Construction, and here must be an unreasonable one to overthrow 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 partialities 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 justify 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 cannot help it if wiser Men than I be of another Opinion; but every Man must be saved by his own Faith, and I must discharge my own Conscience. I have made several Derees since I have had the Honour to sit in this place, which have been reversed in another 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 pronounce 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 Ajournment Propter Difficultatem, but out of a Court of Law where the proceed are in Latin. The proceed 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 under 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 extinguished the Trust in the other, and the Term contrary to both Law and Reason, by the Merger and Surrender and common Recovery. And that the Defendants do account with the Plaintiff for the profits of the premises 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 without wilful default; and that it be referred to Sir Lacon William Child, Knight, one of the Masters of this Court, to take the said Account, and to make unto the Defendants all just allowances; and what the said Master shall certify due, the said Defendants are to pay unto the Plaintiffs, according to the Master's Report herein to be made. And that the Defendants shall forthwith deliver the possession of the Premises 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 Plaintiff as the Master shall approve of, in Case the parties cannot 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; showing, that his Father intended a Provision for his younger Children, 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 trusties, in order thereunto; and that after a long Suit in Chancery, wherein the Petitioner was Plaintiff, against his Grace the late Duke of Norfolk, the Marquis 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 Majesty's 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 Thomas, late Duke of Norfolk; which Decree was signed and enroled, and the Petitioner actually vested in the Possession of the said Manors and Premises; and further showeth, 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 Demurer; 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, overruled the said Plea and Demurrer, and reversed the Decree aforesaid; and ordered a Writ, or Writs of Restitution, to be directed to the Sheriffs of Cumberland and Westmoreland, 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 Thirtieth 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 Majesty's Reign, in behalf of Charles Howard, Esq; the now Petitioner, Be, and Is hereby affirmed. JOHN BROWNE, Cler. Parl. FINIS.