HEnry Frederick, late Earl of Arrundel by Deed in March 1647. Settles the Barony of Grayſtock, on the Marqueſs of Dorcheſter, and other Truſtees, to the uſe of himſelf and his Counteſs for their Lives, then limits to the Truſtees a Term of two Hundred Years, in truſt if Thomas his Eldeſt Son, or any iſſue male of his Body be living at the Commencement of the Term, to permit Henry and his Heirs Male, to receive the Rents and profits thereof until ſuch time, as by the Death of his Eldeſt Son Thomas without iſſue, Male, or leaving his Wife Privement Enſeint of a Son, or by Failure of iſſue Male, the Earldome of Arrundel deſcend to Henry, and that upon deſcent of the Earldome to Henry, the Truſtees ſhould permit Charles and the Heirs Males of his Body; and for want of ſuch iſſue Edward and the Heirs Males of his Body, and likewiſe Francis and Bernard, and the Heirs Males of their Bodies, and for want of ſuch iſſue the right Heirs of the ſaid Henry Frederick, to receive the Rents, and profits of the Barony during all the Term of two Hundred years, and then the Inheritance is limited to Henry, Charles, Edward, Francis, and Bernard ſucceſſively in Tayle Male, Remainder to the right Heirs of Henry Frederick.

Henry in 1675, having both the Truſt of the Term and the Freehold, and inheritance in him; ſuffers a Recovery, and bars all the Remainders, and notwithſtanding Thomas died in 1677. Henry continued in poſſeſſion of the Barony of Graystock.

Henry by the Marriage agreement between himſelf, and the Lady Ann Siſter to the Duke of Beaufort was to Settle the Mannors of A.B. and C. of about 5000. l. per Annum value on the iſſue male of that marriage; thoſe Lands being ſold, the now Duke of Norfolk being the Eldeſt iſſue male of that Marriage brought his Bill in 1679 againſt Henry his Father to have a recompence of thoſe Lands he ſhould have ſettled, and which he had ſold away.

Henry propoſeth in Lieu of thoſe Lands to ſettle the Barony of Grayſtock and other Lands on the now Duke, all not above the Value of one third of the Mannors that ſhould have been ſettled by his Mothers Marriage agreement.

Hereupon the now Duke adviſeth with Mr. Serjeant Maynard, Sir William Jones, and other eminent Councel, whether Mr. Charles Howards pretence to the Barony of Grayſtock were good or not? they all agree he had no Title to the Barony of Grayſtock, and thereupon the now Duke accepts a conveyance from his Father in 1680. in Lieu of what ſhould have come to him by his Mothers Marriage agreement, ſo that the now Duke, if Mr. Charles Howard be releaſed muſt be undoubtedly defrauded of the Benefit of his Mothers marriage Agreement, and this upon a compaſſionate preſumption that Charles his Father intended this Barony for him upon Thomas his Death without iſſue, and the Earldome Arrundel deſcending on Henry, though contrary to all rules of Law and Equity.

This being the Caſe,17 Junii,34. Car. 2d. the ſame was heard by the late Lord Chancellor Nottingham aſſiſted by the Lord Chief Juſtice of the Kings Bench; the Lord Chief Juſtice of the Common Pleas, and the Lord Chief Baron of the Exchecquer; the three Chief Judges agreed in an Unanimous opinion that the Limitation of the Truſt of the Term to Charles and the Heirs males of his Body after, the ſame was limited to Henry and the Heirs Males of his Body, and a dying without iſſue of Thomas, was void, and that the Limitation to Henry, and the Heirs Males of his Body carried the whole truſt of the Term; notwithſtanding the ſaid three Chief Judges Opinion the Lord Chancellor Nottingham upon his own ſingle Opinion decreed the Limitation to Charles good.

The now Duke of Norfolk brought his Bill of Reveiw to reverſe this decree to which Mr. Charles Howard put in a Plea and Demurrer, and the ſame coming to be argued before the now Lord Keeper, the Lord Guilford, he propoſed (that leaſt it might be thought he lay under ſome prejudice in this Cauſe, having delivered his Opinion formerly, that the Remainder to Charles was void) that a Caſe ſhould be made and the opinion of all the Judges taken in it, but that being rejected by Mr. Charles Howards Councel his Lordſhip proceeded to hear the Cauſe and reverſed the decree.15Maii. 35. Car. 2d.

It was agreed by all as well the Lord Nottingham, as all the reſt that heard this Cauſe, that a Term cannot be limited to go in ſucceſſion from one, and Heirs Males of his Body, to another, and the Heirs Males of his Body, but my Lord Chancellor Nottingham inſiſted that the Contingency of the Earldome of Arrundel, coming to Henry being to happen within a Life, that therefore that Limitation was good.

The Lord Keeper, and the Lords, the Judges, inſiſted, that limitation to Charles was void of a Term, it not being to take effect till the Death of Thomas without iſſue; and the Truſt being in the mean time limited to Henry, and the Heirs Males of his Body was a total diſpoſition of the Truſt of the Term, and for this they relyed on the Authority of Child and Baylies Caſe adjudged in the Court of Kings Bench, Hill. 15o Jac. 1. and afterwards affirmed in a Writ of Error; ſo that the Caſe was adjudged by ten of the twelve Judges. The Caſe is this, a Term of ſeventy years is deviſed to Dorothy for Life, then to William and his aſſignes, provided if William dye, without iſſue then living, then to Thomas another Son of the Deviſors, the Limitation over to Thomas in that Caſe was to happen within a Life as in our Caſe, by the dying of William without iſſue in the Life time of Thomas, yet there the Limitation being not to Thomas till the dying of William without iſſue, it was held void, becauſe in intendment of Law that was a Limitation perpetual. This Caſe the Lord Chancellor ſaith went on ſeveral reaſons not to be found in our Caſe, and then inſtanceth five.

And now if this Court ſhall adjudge this Limitation to Charles good, you will deſtroy the former Rules of Law, and yet can never carry this Limitation according to the intent of the ſaid Henry Frederick to each of his Sons, and their Heirs males; and the now Duke of Norfolk will be utterly defeated of all the recompence of his Mothers marriage Agreement.