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 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 than they could have stood alone in their Original Creation.

I conceive that the Trust for the term is appointed to waitSerj. 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, onely 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 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 in­tailed.

But when it is so limited, 'tis not properly an Intail within the Statute de bonis, 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 Intail, shall be subject to his Debts against the Issue Intail, 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. [Page 4] 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 surrendred, 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.

I am of opinion that the Term being limited to H. H. andSir William Jone'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 intailed 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 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 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.

I am of opinion, that the now Duke of Norfolk and EarlSir 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 surrendred; and so if any Title re­main to the younger Brothers, it can onely 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 [Page 5] 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 lifetime, or not at all. To which I answer, that though a Contingency 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 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 [Page 6] 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.

The Case is new, and without any express President, andSerj. M—d's opinion 20 Nov. 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 President in point, yet such-like 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 intailed in Possession or Re­mainder; 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 is not capable of such Priviledges of Intail as Inheritance is, for the Intail is confirmed by the Statute of Westm. 2d de bonis; but the attendance of the Term upon the In­heritance intailed, is not within the Statute de bonis, &c. 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 intail Alien without Fine or Recovery for valuable Consideration, the Issue Intail 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 onely 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 Intail, Remainder to Charles Intail, &c. the Recovery [Page 7] suffered by H. would have bar'd 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 dye 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 pollity of the Law, where the Cessor is limited on the death of a Stranger without Issue, or of the Tenant Intail 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 Childs 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 Trustees for him at the same time, causes the Lease to be setled in Trustees in Trust for the Sons, to wait on the Inheritance in Trust accordingly, provided that the second Son dye 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 DeathMic. 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. dyed 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 affirmedMic. 20. Jac. [Page 8] 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. onely as here it is on the life of H. and the Reasons of their Judgments both in the Kings 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 dyed without Issue in thirty or forty, or any number of years, or if it had been limited that Tho. had dyed 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, then it had been if Tho. had dyed without Issue generally; for he may dye without Issue, though he dye 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 Intail, 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 was never intended by the Deed.

I conceive, that notwithstanding the late Judgments inOpinions 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 onely 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 [Page 9] 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 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 is in no sort bar'd by the Fine, if a Bill be exhibied in time.

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.

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 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; though as to that, there is a difference taken in Tatten and Mollenex Case, More 809, 810. in Chance­ry, by the Lord Chancellour, and the Judges assistant; which seems to be reasonable, that the first party that is the Cesti (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: 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 presidents in that Court too. But this case dif­fers where the course of Equity is against it; therefore, first there is onely 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 Cesti (que) 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 compleatly in the Brothers after. Thirdly, then the Marquess of Dorchester assigns [Page 10] 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 recompence 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 Browns 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 onely 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 hapned if H. H. had not suffer­ed [Page 11] 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.

1. The Surrender or Grant of the Lease for 200 years toSerj. 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 Intail 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 setled in tail, the term may be setled to the use of the Fee or Tenant intail; and in that case, if the Tenant intail 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 intail, 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 intail and him in Remainder, 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. 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 alters the Trust, and changes the Intail of the term to other persons, from Henry to the younger Chil­dren, [Page 12] 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 dyed; for till he dyed, 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 onely 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 joyn 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 onely 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 onely 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.

1. I agree, that if a man have a term for a 1000 years, andSir 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 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 Chattle, 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 dye 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'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 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 [Page 14] 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 easie 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 Honours Fami­ly and younger Children.

Obj.There is no 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 intail in posses­sion, and suffers a common Recovery, and bars all the Remain­ders Intail.

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 Intail, 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, 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.

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.

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 Trustees 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 intail 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 [Page 18] 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, then 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) then the Trustees 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 Man­nors with cross Remainders to the five Brothers, then 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 Precipe, 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 surrendred 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 surrendred; and being so sur­rendred, hath no existance 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 recompence 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 Brothers 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 setled; 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 onely 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 [Page 20] 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, ought 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 set­led, therefore it were in vain to tell you the steps taken to­wards it. That the devize 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 onely 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 onely 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 Abridgments, 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.

Sanders 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 [Page 21] name of Henry Howard, the other will follow when there is a Limitation Intail, (though it cannot be properly stiled Intail 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 Intail 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 meer 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 [Page 22] 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 alleadged 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 Councel, that the Term was given to him and his Assigns, was onely an Answer to a Case put in the argument upon Child and Baily's Case, which was the Case of Rhetorick and Chappell, 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 Rhetoricks and Chappell's, it was Hill. 31 and 32 Car. 2. Reg. 1615, Gibson's and Sanders's 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 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. '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 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 [Page 24] 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 [Page 25] 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 the Kingdom, and ought 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 it self; 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 meer 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 [Page 26] 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 then 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 Intail, 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 onely this difference, if the Estate­tail 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, &c. then the Re­mainder over, then it had been clear the Contingency had been limited upon the expiring of the Intail; 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 mans 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 judgment 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 [Page 27] 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 Estate­tail 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 onely, and no fur­ther, then let the Contingency have been what it would, that were to happen in his life, if complicated with several ascen­dents, 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 ought 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 setled the Inheritance by one Deed Intail 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 [Page 29] 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 setled 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 then 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 Forreign 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 Free-hold 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 Free-hold 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 [Page 30] 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 onely 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 forreign Limitation as this is, (I call it Forreign, 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 mens 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 mens 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 incum­ber Estates and mightily entangle Lands.

This is certain, such an allowed Limitation would adde 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 [Page 31] 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, then 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, &c. 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's dying without Issue Male, then 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's life-time, then 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's 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.