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's 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 Abridgment 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 intire 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 easie interpretation will speedily wear out and so things come to their right Channel again Let us examine this Rule with respect to Freehold-Estates and see whether there it will amount to the same Issue There is not in the Law a clearer Rule than this that there can be no Remainders limitted after a Fee simple so is the 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 dye without Issue in the life of B. then to B. and his Heirs this is a Fee simple upon a Fee simple and yet it has been held to be Good. My Lord Chief Baron did seem to think that this Resolution Cro. Mich. 18 Jac. 590 did take its Original from Pells and Brown's Case but it did not so the Law was setled before you may find it expresly resolved 19 Eliz. in a Case between Hinde and Lyon 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 judgment in 38 Eliz. grounded upon the Reason of Wellock and Hammond's Case cited in Beraston's Case where it is said Crooke Eliz. 204. in a devise it may well be that an Estate in Fee shall cease in one and be transferred to another all this was before Pells and Brown's Case which was in 18 Jac. It is true it was made a Question afterwards in the Serjeants Case but what then We all know that to be no Rule to judge by for what is used to exercise the Wits of the Serjeants is not a governing Opinion to decide the Law. It was also adjudged in Hil. 1649. when my Lord Rolls was Chief Justice and 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
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 c. 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 setled and Matthew Mannings Case did not stretch so far because this would tend to a Perpetuity Now on the other side I would fain know when there is a Case before the Court where the Limitation doth not tend to a Perpetuity nor introduceth any visible Inconvenience what should hinder that from being good For tho' if there be a 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 Pells and Browns Case which under favour was not the first Case that was so Resolved for as I said before when I first delivered my Opinion it was resolved to be a good Limitation 19 Eliz. in the Case of Hinde and Lyon 3 Leonard 64. which by the way is the best Book of Reports of the later ones that hath come out without Authority If that be so then where a present Remainder will not be allowed a Contingent one will. If a Lease for years come to be limited in Tail the Law allows not a present Remainder to be limited thereupon yet it will allow a future Estate arising upon a Contingency only and that to wear out in a short time But what time and where are the bounds of that 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 where-ever 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 meer Chattels and are not in consideration of Law so great as Freeholds or Inheritances These are words and but words there is not any real difference at all but the Reason of Mankind will laugh at it shall not a Man have as much power over his Lease as he has over his Inheritance If he have not he shall be disabled to provide for the Contingencies of his own Family that are within his view prospect because it is but a Lease for years and not an Inheritance or a Freehold There is that absurdity in it which is to me insuperable nor is the Case that was put answered in any degree A Man that hath no Estate but what consists in a Lease for years being to Marry his Son setled this Lease thus In Trust for himself in Tail till the Marriage take effect and if the Marriage take effect while he lives then in Trust for the Married couple is this 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 c. then this Term shall cease and there shall a new Term arise and be created to vest in Charles in Tail and that had been wonderful well and my
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 Rhetorick and Chappell's Case There was also started at the Bar in Pell and Browns Case that a Fee upon a Fee arising upon such a proximate 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 it self has been controverted since that Judgement given in a Case between Jay and Jay in stiles Reports 258 and 274 Trinit 1651 fol. 258. 'T is 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 Serjeants Case and adds moreover that it hath been ever since disputable and cites a Case and gives you a Roll but not the Parties names Mich. 37 and 38 Eliz. C. B. Rol. 1149 wherein says the Book after solemn Arguments both at Bar and Bench it was adjudged quite contrary to Pell and Brown's Case but admit that Case to be good Law where will you stop if you 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 Gibsons 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 hapned upon Thomas's death without Issue and so the Honour is come to Henry I say the hapning 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 onely point is this Whether this contingent Trust of a Term limited to Charles upon the dying of Thomas without Issue Male whereby the Honour did descend to Henry be good in point of Creation and Limitation for the other two points will not trouble the Case For as to that point of the 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 then 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 shew that if your Lordship shall decree this Cause for the Plaintiff then he hath committed a breach of Trust but if for the Defendant then it is of no weight at all If the Law be for the Plaintiff then he must answer for this breach of Trust and so must the Duke for it is a 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