The Duke of Norfolk's Case, Or the Doctrine of Perpetuities.

Chancery Division

Original Eng. Rep. version, PDF

Original Citation: (1649-1779) 3 Chan Cas 1

English Reports Citation: 22 E.R. 931

See Judgment corrected from Lord Nottingham's MSS. 2 Swans. 454 [36 E.R. 690].

SELECT CASES in the HIGH COURT OF CHANCERY, solemnly ARGUED AND DECREED by the Late LORD CHANCELLOR with the assistance of the Judges. [Also known as 3 Chancery Cases.] [1681-1698.]

The Duke of Norfolk's Case ; or, The Doctrine of Perpetuities. [See Judgment corrected from Lord Nottingham's MSS. 2 Swans. 454.]

(20 Martii 1647.) A. Bargains and sells to L. the Baronies of Gr. and Br. for ten Months.

(21 Martii 1647.) A. grants the Reversion of those Baronies to R. and D. and their Heirs, to the Use of A. for Life, Remainder to E. the Wife of A. for Life, Remainder to R. and D., &c., for 200 Years upon Trusts, to be declared by another Deed of the same Date, Remainder to H. H. his second Son, and the Heirs Males of his Body, Remainder to C. H. his third Son, and the Heirs Males of his Body, Remainder to E. H. his fifth Son, and the Heirs Mules 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. attorns Tenant to R. and D., &c*

(21 Martii 1647.) A. makes another Deed declaring the Trust of the Term for 200 Years reciting it, and the Uses in the last mentioned Settlement, says in the reciting Part, That it is 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. eldest Son of A. or any Issue Male of his Body shall live. But in Case T. H. die without Issue of his Body, in the Life of H. H. not leaving his Wife ensient with a Son, or that after the Death of E. H. by Failure of Issue Male of T. H. the Honour of A. should descend on H. H. then H. H. and his Heirs to be excluded of the Trust; then the Indenture witnesseth, that the Term shall be upon the Trusts [2] and under the restrained Limitation and Proviso's after-mentioned, viz. If T. H. or any Issue Male of his Body be living, in Trust for H. H. and the Heirs Males of his Body, until by the Death of T. H. without Issue Male, and not leaving his Wife ensient with a Son, or after his Death, by Failure of Issue Male, the Honour of A. descends to H. H. and in Case the Honour shall not descend to H. H. that after the Death of H. H. the Trust shall be for the Heirs Males of H. H, and for Default of such Issue, in Trust, to permit such other Persons and their Issue Male respectively, to whom the Freehold 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 C. H. and the Heirs Males of his Body, Remainder to C. 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, Re¡mainder 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, Re-

931

932 THE DUKE OP NORFOLK'S CASE ; OR, 3 CHAN. CAS. 3.

mainder 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 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.

(20 Novemb. 1675.) D. the surviving Trustee at the Request of H. H. assigned the Term to one Harriot.

(1 Dec. 1675.) Harriot assigned the Term to H. H.

(24 Octob. 1675.) H. H. by Bargain and Sale inrolled sells to H. to make him Tenant to the Prcecipe for suffering a Recovery.

(25 Octob. 1675.) The Use of the Recovery declared to be to H. H. and his Heirs.

(Nov. 1677.) T. H. the eldest Son of A. died without Issue or having ever been married.

// 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 surrendred ?

(Serj. P. ton's Opinion, 26 Dec. 1677.)

I am of Opinion, that the Trusts to all the Brothers of H. H. in his Term are void, and no Ways relievable in Equity :, For if [3] 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 Attendency of the Term upon the Reversion of the Estate which was so intailed, and then when their Estates in Remainder were docked by the Recovery which H. H. suffered, and the Trusts that attended on them were likewise destroyed, and can never survive the Remainder on which they depended, no more thon they could have stood alone in their Original Creation.

(Serj. M d's Opinion,"28 Dec. 1677.)

I conceive that the Trust for the Term is appointed to wait upon the Inheritance in the Fore-part 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 are expressed, being the Trust is limited and in the same Order, only the Contingencies of the Death of T. H. without Issue, &c., prout.

The Trust of the Term limited to H. H. and the Heirs Males of his Body, with Remainders over, as the 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 intail'd, yet it may be made to wait upon the Inheritance that is intailed.

But when it is so limited, it is not properly an Intail within the Statute de Donis, but governable partly in Equity, and partly in Law.

H. H. to whom it is so intailed, may dispose of it, and thereby bind his Issue without Fine and Recovery, as I conceive. And, the Term so limited in Tail shall be subject to his Debts against the Issue in Tail, 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 it self 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, suffer'd a Recovery, the contingent Trusts of the Term to the others, are destroyed.

In Law they have no Relief, because the Estate for Years is surrendred, and I conceive the Chancery will not support such leaping Limitations of a Term for Years,

3 CHAN. CAS. 4. THE DOCTRINE OF PERPETUITIES 933

especially when it cannot take Effect in toto, as the contingent Limitations are, and

the Remainders in that Case will be void. M--D

[4] (Sir 'William Jones'a Opinion, 20 Jan. 1677.)

I am of Opinion, that the Term being limited 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 were void: For a Trust of a Term cannot

be intailed unless it be to attend an Inheritance; and the Limitations of the Trust

differing from the Limitations of the Inheritance, it is all one as if the Trust of the

Term was limited, without Respect to any Inheritance, in which Case the Limitations

of the Term to the other Brothers would be clearly void. Next I take it to be clear,

that Taking the Trust of the Term to be attendant to the Inheritance of the Recovery,

having barr'd the Remainders of the other 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 intitled 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.

(Sir William Jones's Opinion, 30 Oct. 1680.)

I am of Opinion, that the now Duke of Norfolk and Earl of Arundel have a good Title to the said Baronies. First, in Law it is clear, that the Term is surrendred; 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 chiefly to attend the Inheritance, and that Inheritance by the Recovery is changed and made a Fee-simple, and this before the Contingencies in the Limitation of the Trust of the Term happened, whereby the Limitations of the Trust 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 Contin¡gency 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. apd 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 it is 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 [5] 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 Con¡tingency 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 Con¡tingency be remote in it self, and not likely to happen within a Life, the Time within which it ought to happen, or not at all, doth not alter the Case ; and therefore in Child and Bayly's Case, reported in 2d Croke 459, 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 tho' it was objected, that the Con¡tingency 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, where 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 Baily's, Case, the Judges say, as I have often heard them say in other Cases (that if Matthew Manning'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

934 THE DUKE OF NORFOLK'S CASE ; OR, 3 CHAN. CAS. 6.

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 is adjudg'd to make it void.

william jones.

(Serj. M d's Opinion, 20 Nov. 1680.)

The Case is new, and without any express Precedent, and 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 Print, yet such like Cases have been determin'd, as guide my Judgment and Opinion to be (scilicet) that as this Case is circumstantiated, Charles hath not, nor can have a Eight to the Trust of the Term ; the Reasons and Ground of my Opinion are as f olloweth.

First, The Trust of the Term for Years in Gross, and separate from an Inheritance, cannot be intailed in Possession or Eemainder; but yet where there is a Term for Years in Being, if the Inheritance of the Land be intailed 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 it is not capable of such Privileges of Intail as Inheritance is, for the Intail is confirm'd by the Stat. of Westm. 2, de Donis ; but the Attendance of the Term upon the Inheritance intail'd is not within the Statute de Donis, &c., is but a Creature of the [6] Chancery, and in several Cases may be destroyed and barred, tho' no Fine and Recovery or other Bar be made of the Inheritance.

I conceive in such Case if the Tenant in Tail alien without Fine or Recovery for valuable Consideration, the Issue in Tail 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 Contin¡gency, that Henry was Tenant in Tail, Remainder to Charles in Tail, &c., the Recovery suffered by H. would have barr'd Charles of 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 quoad 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 intailed. And secondly, the Term is not to cease, but upon the Death of Tho. Duke of Norfolk without Issue in the Life of Henry.

As to the first, it will make no Difference in Reason and in the Polity of the Law, where the Cessor is limited on the Death of a Stranger without Issue, or of the Tenant in Tail 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 their Solutions 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 a Father and several Sons, A. B. & C., and the Father is seiz'd in Fee of the Reversion of Lands after a Lease of 200 Years, he settles the Inheritance upon his eldest Son in Tail, with Remainders in Tail to his other Sons ; and this Lease being in Trustees for him at the same Time causes the Lease to be settled in Trustees 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 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 con¡ceive no Difference made thereby, and it is in Effect the Point adjudged in Child and Bayly's Case (Mic. 17 Jac. [1619], B. R.) [Cro. Jac. 459], which was thus : French, a Termor for 76 Years, demises to his Wife for Life, Remainder of the [7] Term to W.

3 CHAN. CAS. 8. THE DOCTRINE OF PERPETUITIES 935

his Son and his Assigns, Proviso, That if the 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 (Mic. 20 [1622] Jac.) affirmed 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 Judgments 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 is in no Sort to be favoured in Law.

In Child's Case it was 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, tho' 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 should wait on the Inheritance in Tail, which now cannot be because it is altered.

Again, If the Law should be otherwise, that Charles have the whole Term, then

those in Remainder shall be utterly defeated of it, and shall not go to Charles his Son

and Heir, but to the Executors, which never was intended by the Deed. M d.

(Opinions and Considerations for the younger Brothers.-Sir J. C. .)

I conceive, that notwithstanding the late Judgments in 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. Hen. 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 Harriot 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 [8] the Remainder of the Term to the Trustees for the younger

Children, as agreeable to the Intention of the Deed of Trust, and to all Honesty and

Equity, and that Equity I take it is in no Sort barr'd by the Fine, if a Bill be exhibited

in Time. J. 0. 8 Jan. 1677,

(Sir R. S.)

I concur with this Opinion, because it is no absolute Trust, 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.

(Mr Osbey.

I conceive, first, that if by Act executed my Lord of Arundel had created this Term to my Lord Dorchester, and the Rest of the Trustees in Trust for Henry Howard in Tail, and after his Death to the Brothers in Tail, that had been a Perpetuity, and not good for a Term ; tho' as to that, there is a Difference taken in Tatten and Mollenex's Case, Moore, 809, 810. in Chancery, by the Lord Chancellor, and the Judges assistant; which seems to be reasonable, that the first Party, that is the Cestui que Trust against his Issue, may dispose of it, but not against him in Remainder; for Equity preserves it as to the Remainder ; so then if it had been to Henry Howard and the Issues of his Body, the Remainders to the Brothers : Tho' Henry Howard could, as to his Issue, dispose

9.36 THE DUKE OP NORFOLK'S CASE ; OR, 3 CHAN. CAS. 9.

of it, yet as to his Brothers it stood good, if that Resolution holds good, and the Book 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, It is not absolutely in Trust in him and his Issue Male, but temporary in them, upon the Failing of the Dignity of Arundel sooner or later, and he is not a Gestui que Trust within any of the Statutes preceding the Statute of Uses, but has but a limited Pursuance of the Profits; but the Trust vests compleatly in the Brothers after. Thirdly, Then the Marquis of Dorchester assigns the Term to Harriot, and he assigning it to H. H. whereby he has in Strictness of Law extinguished it, whereby there is a Wrong and Deceit done to the Brothers, he is bound in Equity and good Conscience to make them Recompence and Satisfaction for this Wrong; and it appear¡ing that H. H. was privy to this, with a Design to extinguish it, and that Extinguish¡ment 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, accord¡ing to the Resolution of the Judges in my Lord of Ormond's Case, Hubbard, 350.

(Sir W. Ellis.

[9] I have seen the Opinions of Mr. Attorney General, Serj. 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 Limita¡tion 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. II. being ended and deter¡mined, 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, then 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.

(Serj. M d for the Brothers.)

1. The Surrender or Grant of the Lease for 200 Years to Henry, nor the Extinguish¡

ment of the legal Interest of the Term, doth not prejudice the equitable Trust of the

Term, so long as the Lands come not into other Hands, viz. of a Purchaser, without

Notice of the Trust, which is not in this Case.

2. An Intail cannot be made of a Term in Gross; as if a Lease for 1000 Years be

made in Trust for /. S. and the Heirs of his Body with Remainders over, /. 8. 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.

[10] 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

3 CHAN. CAS. 11. THE DOCTRINE OF PERPETUITIES 937

purchased in Fee, or settled in Tail, the Term may be settled to the Use of the Fee or Tenant in Tail; and in that Case, if the Tenant in Tail die, or the Tenant in Fee die, the Heir or Issue shall have the Benefit of the Trust, and not the Executors, &c.

4. But in that Case, if the Tenant in Fee die in Debt, and no other sufficient Assets

to pay the Debt, in that Case the 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 in Tail, 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 a Term, it shall bind the Issue in Tail and him in Re-

mainder, though the Alienation be by Deed without Fine or Recovery, because the

Term in Law is well aliened without Fine, &c. And the Statute of Westm. 2 de Donis

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 alters the Trust, and changes the Intail 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 this 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 Cir¡cumstances 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 econtra 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 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 [H] 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 intailed as to the Term, and be wholly

in the respective Disposition of Edward and the Rest, and go to their Executors, not

to their Issues or the Remainders.

And yet upon long Consideration of the Case, there is 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, re¡specting 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.

C. II.-30*

938 THE DUKE OF NORFOLK'S CASE ; OR, 3 CHAN. CAS. 12.

Sir W. Ellis.

1. I agree, that if a Man have a Term for 1000 Years, and he grants and de-

miseth this to one and the Heirs Males of his Body, the Eemainder to another and his

Heirs, that this Term cannot be intailed, nor a Remainder limited upon it; and that

upon the Death of the Party, to whom the Term was so given, it shall go to his

Executors as a 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 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,

1 conceive, is the common Course in Chancery to incorporate [12] 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's elder Brother lived,

and hath Heirs Males of his Body, and until the Earldom of A. doth come unto him;

so as by the Death of Duke Thomas without Issue, the Trust to Henry, which was

but a limited Trust, is now determined and vanquished as to Henry.

As this was a contingent Trust in Henry, but in case Thomas 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.

How long shall Henry and his Issue have this Trust ?

Until Thomas die without Issue Male, and the Earldom of A. come unto him, both which have 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 yotmger 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 the 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.

There is one Objection against all I have said, which seems prima facie to carry Weight with it; and that is, when the legal Interest is come to Henry, and he is Tenant in Tail in Possession, and suffers a common Recovery, and bars all the Remainders in Tail.

How can this Trust which is an Accessary follow Estates 1

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 in Tail, 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.

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

3 CHAN. CAS. 14. THE DOCTRINE OF PERPETUITIES 939

Another great Question was, Thomas the second Son suffered a common Recovery, whether this did not bar the future contingent Possibility of William 1

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 or more, and therefore there is much Eeason that the future contingent Possibility of a Trust should not be barred by a common Eecovery, as in this 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 inde¡pendent 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 Harriot in Breach of the Trust, which a Court of Equity ought to maintain and support as much as they can.

First, Because Harriot 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.