THis is the Case. The Plaintiff, by his Bill demands the bene­fit of a Term for two hundred Years, in the Barony of Grey­stocke, upon these settlements.

Henry Fredericke late Earl of Arundel and Surry, Father of the Plaintiff and Defen­dant, [Page 2] had Issue, Thomas, Henry, Charles, Ed­ward, Francis and Bernard; and a Daughter, the Lady Katharine: Thomas Lord Maltravers, his eldest Son was Non compos Mentis, and care is taken to settle the Estate and Family, as well as the present circumstances will admit. And thereupon there are two Indentures drawn, and they are both of the same date. The one is an Indenture between the Earl of Arundel of the one part; and the Duke of Richmond, the Marquess of Dorchester, Edward Lord Howard of Eastcricke, and Sir Thomas Hatton, of the other part: it bears date the Twenty first day of March, 1647. Whereby an Estate is con­veyed to them and their Heirs; To these uses; To the use of the Earl for his life.

After that to the Countess his Wife for her life, with power to make a Lease for 21. Years, reser­ving the antient Rents.

The remainder for 200. Years to those Tru­stees, and that upon such trusts, as by another Indenture intended to bear date the same day the Earl should limit and declare; and then the remainder of the Lands are to the use of Henry, and the Heirs Males of his Body begotten, with like remainders in Tail to Charles, Edward, and the other Brothers successively.

Then comes the other Indenture, which was to declare the Trust of the Term for 200 Years, for which all these preparations are made, and that declares that it was intended this Term should attend the inheritance, and that the pro­fits of the said Barony, &c. should be received [Page 3] by the said Henry Howard, and the Heirs Males of his Body so long as Thomas and any Issue Male of his Body should live, (which was consequently only during his own life, because he was never like­ly to marry) and if he dye without Issue in the life time of Henry, not leaving a Wife prive­ment Enseint of a Son, or if after his death, the Digniy of Earl of Arundell should descend up­on Henry; Then Henry or his Issue should have no farther benefit or profit of the Term of 200 Years. Who then shall? But the benefit shall redound to the younger Brothers in manner fol­lowing. How is that? To Charles and the Heirs Males of his Body, with the like Remain­ders in Taile to the rest. Thus is the matter set­led by these Indentures; how this Family was to be provided for, and the whole Estate govern'd for the time to come.

These Indentures are both sealed and deliver­ed in the presence of Sir Orlando Bridgman, Mr. Edward Alehorne and Mr. John Alehorn, both of them my Lord Keeper Bridgman's Clerks; I knew them to be so.

This Attestation of these Deeds is a Demon­stration to me they were drawn by Sir Orlando Bridgman.

After this the Contingency does happen: for Thomas Duke of Norfolk dies without Issue, and the Earldome of Arundel as well as the Duke­dom of Norfolk descended to Henry now Duke of Norfolk, by Thomas his death without Issue: presently upon this the Marquess of Dor­chester, the surviving Trustee of this Estate, [Page 4] assigns his Estate to Marryot, but he doth it up­on the same Trusts that he had it himself: Mr Marryot assigns his interest frankly to my Lord Henry, the now Duke, and so has done what he can to merge and extinguish the Term by the signing it to him, who has the Inheritance.

To excuse the Marquess of Dorchester from cooperating in this matter, it is said, there was an absolute necessity so to do; Because the Te­nants in the North would not be brought to renew their Estates, while so Aged a person did continue in the Seigniory, for fear, if he should dye quickly, they should be compelled to pay a new Fine. But nothing in the World can excuse Marryot from being guilty of a most wilful and palpable Breach of Trust, if Charles have any Right to this Term: so that the whole contention in the Case is to make the Estate li­mited to Charles, void, void in the Original Creation, if not so, void by the common Re­covery suffered by the now Duke, and the As­signment of Marryot. If the Estate be Originally void, which is limited to Charles, there is no harm done; but if it only be avoided by the Assignment of Marryot, with the concurrence of the Duke of Norfolk, he having notice of the Trusts, then most certainly they must make it good to Charles in Equity, for a palpable breach of Trust of which they had notice. So that the question is reduced to this main single point, Whether all this care that was taken to settle this Estate and Family, be void and insignificant; and all this provision made for Charles and the Younger Children to have no Effect.

[Page 5] I am in a very great strait in this Case: I am assist­ed by as good advice, as I know how to repose my self upon, and I have the fairest opportunity, if I concur with them, and so should mistake, to excuse my self, that I did errare cum patribus; but I dare not at any time deliver any Opinion in this place, without I concurr with my self and my Conscience too.

I desire to be heard in this Case with great benignity, and with great excuse for what I say, for I take this question to be of so universal a Concernment to all mens Rites and Properties, in point of disposing of their Estates, as to most conveyances, made and setled in the late times and yet on foot, that being afraid I might shake more settlements than I am willing to do, I am not disposed to keep so closely and strictly to the Rules of Law as the Judges of the Com­mon-Law do, as not to look to the Reasons and Consequences that may follow upon the determi­nation of this Case.

I cannot say in this Case, that this Limitation is void, and because this is a point, that in Courts of Equity (which are not favoured by the Judgments of the Courts of Law) is sel­dome debated with any great industry at the Barr; but where they are possessed once of the Cause, they press for a Decree, according to the usual and known Rules of Law; and think we are not to examine things. And because it is probable this Cause, be it adjuged one way or other, may come into the Parliament, I will take a little pains to open the Case, the Consequences that depend upon it, and the Rea­sons [Page 6] that lye upon me, as thus perswaded, to sus­pend my Opinion.

Whether this Limitation to Charles be void or no, is the Question. Now, first, these things are plain and clear, and by taking notice of what is plain and clear, we shall come to see what is doubtful.

1. That the Term in Question, tho' it were attendant upon the Inheritance, at first, yet upon the hapning of the Contingency, it is become a Term in gross to Charles.

2. That the Trust of a Term in gross can be limited no otherwise in Equity, than the Estate of a Term in gross can be limited in Law: for I am not setting up a Rule of Property in Chance­ry, other than that which is the Rule of Property at Law.

3. It is clear, That the legal Estate of a Term for Years, whether it be a long or a short Term, cannot be limited to any man in Taile, with the remainder over to another after his death with­out Issue; That is flat and plain, for that is a direct perpetuity.

4. If a Term be limited to a Man and his Issue, and if that Issue dye without Issue, the remainder over, the Issue of that Issue takes no Estate; and yet because the remainder over cannot take place, till the Issue of that Issue fail, that Remainder is void too, which was Reeves Case; and the rea­son is, because that looks towards a perpetu­ity.

[Page 7] 5. If a Term be limited to a Man for life, and after to his first, second, third, &c. and other Sons in Tail successively, and for default of such Issue the remainder over, though the contingency never happen, yet that Remainder is void, though there were never a Son then born to him; for that looks like a perpetuity, and this was Sir William Backhurst his Case in the 16. of this King. Modern Re­ports, 115.

6. Yet one step further than this, and that is Burgis's Case. A Term is limited to one for life, Modern Re­ports, 115. with contingent Remainders to his Sons in Tail, with remainder over to his Daughter, though he had no Son; yet because it was foreign and distant to expect a Remainder after the Death of a Son to be born without Issue, that having a prospect of a perpetuity, also was adjudged to be void.

These things have been settled, and by these Rules has this Court alwayes governed it self: But one step more there is in this Case.

7. If a term be devised, or the Trust of a Term limited to one for Life, with twenty Re­mainders for Life, successively, and all the per­sons in esse, and alive at the time of the Limi­tation of their Estates, these though they look like a possibility upon a possibility, are all good, because they produce no inconvenience, they wear out in a little time with an easie interpre­tation, and so was Alford's Case. I will yet go farther.

8. In the Case cited by Mr. Holt, Roll. abr. tit. devise, 612. Cotton and [Page 8] Heath's Case, a Term is devised to one for 18. Years, after to C. his eldest Son for Life, and then to the eldest Issue Male of C. for Life, though C. had not any Issue Male at the time of the Devise, or death of the Devisor, but before the death of C. it was resolved by Mr. Justice Jones, Mr. Justice Crook, and Mr. Justice Berkley, to whom it was referred by the Lord Keeper Coventry, that it only being a contingency upon a Life that would be speedily worn out, it was very good; for that there may be a possibility up­on a possibility, and that there may be a contin­gency upon a contingency, is neither unnatural nor absurd in it self; but the contrary Rule gi­ven as a Reason by my Lord Popham in the Re­ctor of Chedington's Case, Co. [...]. 156. looks like a Reason of Art; but, in truth, has no kind of Reason in it, and I have known that Rule often denyed in West­minster-Hall. In truth, every Executory Devise is so, and you will find that Rule not to be allow­ed in Blanford and Blanford's Case, 13. Jac. 1. part of my Lord Rolls, 318. where he sayes, If that Rule take place, it will shake several common Assurances: And he cites Paramour's and Yardley's Case in the Commentaries where it was adjudged a good Devise, though it were a possibility upon a possibility.

These Conclusions, which I have thus laid down, are but Preliminaries to the main De­bate. It is now fit we should come to speak to the main Question of the Case, as it stands up­on its own Reason, distinguished from the Rea­sons of these Preliminarie; and so the Case is this.

The Trust of a Term for Two Hundred [Page 9] Years is limited to Henry in Tail, provided if Thomas dye without Issue in the life of Henry, so that the Earldome 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 dye, it will not return to Henry; for that is my Lord Cook's error in Leonard Loveis's Case: for he sayes, Co. 10. 87. That if a Term be devised to one and the Heirs Male 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 [Page 10] 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 applyed 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 dye 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 great 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 undenyable 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.

[Page 11] 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 cloggs upon the Estate: such do fight against God, for they pre­tend to such a stability in human Affairs, as the nature of them admits not of, and they are a­gainst the Reason and the policy of the Law, and therefore not to be endured.

But on the other side, future Interests, springing Trusts, or Trusts Executory, Remainders that are to emerge and arise upon Contingencies, are quite out of the Rules and Reasons of Perpetuities, nay out of the reason upon which the Policy of the Law is founded in those Cases, especially, if they be not of remote or long consideration; but such as by a natural and easy interpretation will speedi­ly wear out, and so things come to the right Cha­nel again.

Let us examine this Rule with respect to Free­hold-Estates, and see whether there it will amount to the same Issue.

There is not in the Law a clearer Rule than this, that there can be no Remainders limited after a Fee simple, so is the express Book: Case 19 Hen. 8. in my Lord Dyer; But yet the nature of things, and the necessity of commerce between Man and Man, have found a way to pass by that Rule, and that is thus; either by way of Use, or by way of Devise: Therefore if a Devise be to a Man and his Heirs, and if he 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 [Page 12] this Resolution did take its Original from Pells and Brown's Case; but it did not so, Cro. Mich. 18 Jac. 590. the Law was setled before; you may find it expresly resolved 19 Eliz. in a Case between Hinde and Lyon, 3. Leonard. 3 Leonard. 64. 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 per descent was forced to pay the debt, and it had the concurrence of a judge­ment in 38 Eliz. grounded upon the Reason of Wellock and Hammond's Case cited in Beraston's Case where it is said, 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 where no Remainders can be li­mited, no contingent Remainder can be limi­ted, which I utterly deny, for there can be no Re­mainder limited after a Fee simple, yet there may a contingent Fee simple arise out of the first Fee, as hath been shewn.

[Page 13] Thus it is agreed to be by all sides in the Case of an Inheritance; but now say they, a Lease for Years, which is a Chattel, will not bear a con­tingent Limitation in regard of the poverty and meanness of a Chattel Estate. Now as to this point, the difference between a Chattel and an Inheritance is a difference only in Words, but not in substance, nor in Reason, or the Nature of the thing: for the owner of a Lease has as absolute a power over his Lease, as he that hath an Inhe­ritance has over that. And therefore where no per­petuity is introduced, nor any inconveniency doth appear, there no Rule of Law is broken.

The Reasons that do support the springing Trust of a Term as well as the springing use of an Inheritance, are these.

1. Because it hath hapned sometimes, and doth frequently, that men have no Estates at all, but what consist in Leases for Years: Now it were not only very severe, but (under favour) very absurd, to say that he who has no other Estate but what consists in Leases for Years, shall be incapable to provide for the Contingen­cies of his own Family, tho' these are directly within his view and immediate prospect. And yet if that be the Rule, so it must be, for I will put the Case; A man that hath no other Estate but Leases for Years, Chattels real, treats for the marriage of his Son, and thereupon it comes to this agreement: These Leases shall be setled as a Joynture for the Wife, and provision for the children; sayes he, I am content, but how shall it be done? Why thus; You shall assign all these terms to John a Styles, in Trust for your self and your Executors, if the marriage take no ef­fect; But then, if it takes effect, to your Son [Page 14] while he lives, to his Wife after while she lives, with Remainders over. I would have any one tell me whether this were a void limitation up­on a Marriage settlement; or if it be, what a strange absurdity is it, that a man shall settle it if the marriage take no effect, and shall not settle it if the marriage happen.?

2. Suppose the Estate had been limited to Hen­ry Howard and the Heirs Males of his Body, till the death of Thomas without Issue, then to Charles, there it had been a void limitation to Charles: if then the addition of those words, If Thomas dye without Issue in the life of Henry, &c. have not mended the matter, then all that addition of Words goes for nothing, which it is unreasonable and absurd to think it should.

3. Another thing there is, which I take to be unanswerable, and I gather it from what fell from my Lord Chief Justice Pemberton; and when I can answer that Case, I shall be able to answer my self very much for that which I am doing. Suppose the Provisoe had been thus penned, And if Thomas dye without Issue Male, living Henry, so that the Earldome of Arundel descend upon Henry, then the term of 200 Years limited to him and his Issue, shall utterly cease and determine, but then a new Term of 200 Years shall arise and be limited to the same Trustees, for the Benefit of Charles in Tail. This he thinks might have been well enough, and at­tained the end and intention of the Family, be­cause then this would not be a Remainder in Tail upon a Tail, but a new Term created.

Pray let us so resolve Cases here, that they may stand with the reason of mankind, when they are debated abroad. Shall that be reason here that is [Page 15] not reason in any part of the World besides? I would fain know the difference, why I may not raise a new springing Trust upon the same Term, as well as a new springing Term upon the same Trust; that is such a chicanery of Law as will be laught at all over the Christian World.

4. Another Reason I go on is this; That the meanness of the consideration of a Term for years, and of a Chattel Interest, is not to be regarded: for whereas this will be no reason any where else; so I shall shew you, that this Reason, as to the Re­mainder of a Chattel Interest, is a Reason that has been exploded our of Westminster-Hall. There was a time indeed that this Reason did so far prevail, that all the Judges in the time of my Lord Chan­cellor Rich, did 6 Edvardi 6. deliver their Opini­ons, That if a Term for Years be devised to one, provided, that if the Devisee dye, Dyer, fol. 74. living J. S. then to go to J. S. that remainder to J. S. is absolutely void, because such a Chattel Interest of a Term for Years is less than a Term for Life, and the Law will endure no limitation over. Now this being a Reason against Sense and Nature, the World was not long governed by it, but in 10 Eliz. in Dyer, Dyer, f. 277. they began to hold the Remainder was good by Devise; and so 15 Eliz. seems too, and 19 Eliz. it was by the Judges held to be a good Remander; Dyer, f. 328. Dyer, f. 358. and that was the first time that an executory Remainder of a Term was held to be good. When the Chancery did begin to see that the Judges of the Law did govern themselves by the reason of the thing, this Court followed their Opinion, the better to fix them in it, they allowed of Bills by the remainder Man, to compel the Devisee of the particular Estate, to put in security that he in Re­mainder should enjoy it according to the Limita­tion. [Page 16] And for a great while so the practice stood, as they thought it might well, because of the Re­solution of the Judges, as we have shewn: but after this was seen to multiply the Chancery Suits, then they began to resolve that there was no need of that way, but the executory Remainder Man should enjoy it, and the Devisee of the particu­lar Estate should have no power to bar it. Men began to presume upon the Judges then, and thought if it were good as to Remainders after Estates for Lives, it would be good also as to Re­mainders upon Estates Tail: That the Judges would not endure, and that is so fixed a Resolu­tion, that no Court of Law or Equity ever at­tempted to break in the World. Now then come we to this Case, and if so be where it does not tend to a perpetuity, a Chattel Interest will bear a Remainder over, upon the same Reason it will bear a Remainder over upon a Contingen­cy, where that Contingency doth wear out within the compass of a life, otherwise, it is on­ly to say, it shall not, because it shall not: For there is no more inconvenience in the one than in the other.

Come we then at last, to that which seems most to choak the Plaintiffs Title to this Term, and that is the resolution in Child and Baylie's Case: For it is upon that Judgment, it seems, all Con­veyances must stand or be shaken, and our De­crees made. Now therefore I will take the liber­ty to see what that Case is, and how far the Opi­nion of it ought to prevail in our Case.

1. If Child and Baylie's Case be no more than as it is reported by Rolls, part 2. fol. 129. then it is nothing to the purpose: A Devise of a Term to Dorothy for life, the remainder to William, and if [Page 17] he dyes without Issue, to Thomas, without saying, in the life of Thomas; and so it is within the com­mon Rule of a Limitation of a Term in Tail, with Remainder over, which cannot be good.

But if it be as Justice Jones has reported it, fol. 15. then it is as far as it can go, an Authority: for it is there said to be, living Thomas. But the Case, under favour, is not altogether as Mr. Justice Jones hath reported it neither; for I have seen a Copy of the Record upon this account; and, by the way, no Book of Law is so ill corrected, or so ill prin­ted as that.

The true Case is, as it is reported by Mr. Ju­stice Crook; and with Mr. Justice Crooks Report of it, doth my Lord Rolls agree, in his abridgment, Cro. Hil. 15 Jac. 459. Title Devise, 612. There it is, a Term of 76 Years is devised to Dorothy for Life, then to William and his Assigns all the rest of the Term, provided if William dye without Issue then living, then to Thomas; and this is in effect our present Case; I agree it. But that which I have to say to this Case is,

First, It must be observed, that the Resolution there, did go upon several Reasons, which are not to be found in this Case.

1. One Reason was touched upon by my Lord Chief Baron, That William having the Term, to him and his Assigns, there could be no Remainder over to Thomas, of which Words there is no no­tice taken by Mr. Justice Jones.

2. Dorothy the Devisee for life, was Executrix, and did assent and grant the Lease to William, both which Reasons my Lord Rolls doth lay hold up­on, as material, to govern the Case.

3. William might have assigned his Interest, and then no Remainder could take place, for the Term was gone.

[Page 18] 4. He might have had Issue, and that Issue might have assigned, and then it had put all out of doubt.

5. But the main Reason of all, which makes me oppose it, ariseth out of the Record, and is not taken notice of in either of the Reports of Rolls, or Jones, or in Rolls Abridgment. The Record of that Case goes farther, for the Record sayes; There was a farther Limitation upon the death of Tho­mas without Issue to go to the Daughter, which was a plain affectation of a perpetuity to multiply Contingencies. It farther appears by the Record, that the Fathers Will was made the 10 of Eliz. Dorothy the Devi­see for life, held it to the 24. and then she gran­ted and assigned the Term to William, he under that Grant held it till the 31 of Eliz. and then re­granted it to his Mother, and dyed; the Mother held it till the 1 of K. James, and then she dyed; the Assignees of the Mother held it till 14 Jac. and then and not till then did Thomas, the younger Son, set up a Title to that Estate; and before that time it appears by the Record, there had been six se­veral Alienations of the Term to Purchasers, for a valuable Consideration, and the Term renewed for a valuable Fine paid to the Lord. And do we wonder now, that after so long an acquies­cence as from 10 Eliz. to 14 Jacob. and after such successive Assignments and Transactions, that the Judges began to lye hard upon Thomas, as to his Interest in Law, in the Term, especially when the Reasons given in the Reports of the Case, were legal Inducements to guide their Judgments, of which there are none in our Case? But then,

Secondly, At last, allowing this Case to be as full and direct an Authority as is possible, and as they would wish, that rely upon it; then I say—

[Page 19] 1. The Resolution in Child and Balie's Case, is a Resolution that never had any Resolution like it before nor since.

2. It is a Resolution contradicted by some Re­solutions, and to shew, that that Resolution has been contradicted, there is—

1. The Case of Cotton and Heath, which looks very like a contrary Resolution, there is a Term limited to A. for eighteen years, the Re­mainder to B. for life, the Remainder to the first Issue of B. for life, this Contingent upon a Contin­gent was allowed to be good, because it would wear out in a short time. But

2. To come up more fully and closely to it, and to shew you, that I am bound up by the Re­solutions of this Court, there was a fuller and flat­ter Case 21 Car. 2. in July 1669, between Wood and Saunders. The Trust of a long Lease is li­mited and declared thus: To the Father for sixty years, if he lived so long; then to the Mo­ther for sixty years, if she lived so long; then to John and his Executors if he survived his Father and Mother; and if he died in their life-time, having Issue, then to his Issue; but if he dye without Issue, living the Father or Mother, then the Remainder to Edward in Tail. John did die without Issue, in the life-time of the Father and Mother, and the question was, whether Ed­ward should take this Remainder after their death, and it was Resolved by my Lord Keeper Bridge­man, being assisted by Judge Twisden and Judge Rainsford, that the Remainder to Edward was [Page 20] good, for the whole Term had vested in John, if he had survived; Yet the Contingency never hap­ning, and so wearing out in the compass of two Lives in being, the Remainder over to Edward might well be limited upon it.

Thus we see, that the same Opinion which Sir Orlando Bridgeman held when he was a Practizer, and drew these Conveyances upon which the que­stion now ariseth, remained with him when he was the Judge in this Court, and kept the Seals; and by the way, I think it is due to the Memory of so great a Man, whenever we speak of him, to mention him with great Reverence and Venerati­on for his Learning and Integrity.

Object. They will perhaps say, Where will you stop, if not at Child and Balie's Case?

Ans. Where? why every where, where there is any Inconvenience, any danger of a perpetuity; and where-ever you stop at the limitation of a Fee upon a Fee, there we will stop in the limita­tion of a Term of years. No man ever yet said, a Devise to a man and his Heirs, and if he die without Issue, living B. then to B. is a naughty Remainder, that is Pells and Browns Case.

Now the Vltimum quod sit, or the utmost limi­tation of a Fee upon a Fee, is not yet plainly de­termined, but it will be soon found out, if men shall set their Wits on work to contrive by Contin­gencies, to do that which the Law has so long labou­red against, the thing will make it self Evident, where it is Inconvenient, and God forbid, but that Mischief should be obviated and prevented.

I have done with the legal Reasons of the Case: it is fit for us here a little to observe the Equitable Reasons of it; and I think this Deed is good both in Law and Equity; And the Equi­ty in this Case is much stronger, and ought to sway a man very much to incline to the making good this Settlement if he can. For,

1. It was prudence in the Earl to take care, that when the Honour descended upon Henry, a little better support should be given to Charles, who was the next Man, and trode upon the heels of the Inheritance.

2. Though it was always uncertain whether Thomas would die without Issue living Henry, yet it was morally certain that he would die without Issue, and so the Estate and Honour come to the younger Son: for it was with a careful cir­cumspection always provided, that he should not Marry till he should recover himself into such e­state of body and mind, as might suit with the honour and dignity of the Family.

3. It is a very hard thing for a Son to tell his Father, that the provision he has made for his younger Brothers is void in Law, but it is much harder for him to tell him so in Chancery. And if such a provision be void, it had need be void with a vengeance; it had need be so clearly void that it ought to be a prodigie if it be not submit­ted to.

Now where there is no perpetuity introduced, no cloud hanging over the Estate but during a Life, [Page 22] which is a common possibility where there is no inconvenience in the Earth, and where the Au­thorities of this Court concur to make it good; to say all is void, and to say it here, I declare it, I know not how to do it. To run so Counter to the judgment of that great man, my Lord Keeper Bridgeman, who both advised this settlement, and when he was upon his Oath in this place De­creed it good. I confess his Authority is too hard for me to resist, though I am assisted by such learned and able Judges, and will pay as great a Deference to their Opinions as any man in the World shall.

If then this shall not be void, there is no need for the Merger by the Assignment or the Reco­very to be considered in the Case: For if so be this be a good limitation of the Trust, and they who had notice of it, will palpably break it, they are bound by the Rules of Equity to make it good by making some Reparation. Nay, which is more, if the Heir enter upon the Estate to de­feat the Trust, that very Estate doth remain in Equity infected with the Trust; which was the Case of my Lord of Thomond; so also was the Resolution in Jackson and Jackson's Case: So that to me the Right appears clear, and the Reme­dy seems not to be difficult. Therefore my pre­sent thoughts are, that the Trust of this Term was well limited to Charles, who ought to have the Trust of the whole Term Decreed to him, and an account of the mean profits, for the time by past, and a recompence made to him from the Duke and Maryot for the time to come. But I do not pay so little Reverence to the Company I am in, as to run down their solemn Arguments [Page 23] and Opinions upon my present Sentiments; and therefore I do suspend the Inrolment of any De­cree in this Case, as yet: but I will give my self some time to consider, before I take any final Re­solution, seeing the Lords the Judges do differ from me in their Opinions.

I Am not sorry for the Liberty that was taken at the Bar to argue this over again, because I desired it should be so; for in truth I am not in love with my own Opinion, and I have not taken all this time to consider of it, but with very great willingness to change it if it were possible. I have as fair and as justifiable an opportunity to follow my own Inclinations (if it be lawful for a Judge to say he has any) as I could desire; for I cannot concur with the three Chief Judges, and make a Decree that would be unexceptionable: But it is my Decree, I must be saved by my own Faith, and must not Decree against my own Conscience and Reason.

It will be good for the satisfaction of the pub­lick in this Case, to take notice how far the Court is agreed in this Case, and then see where they differ, and upon what grounds they differ; and whether any thing that hath been said be a ground for the changing this Opinion. The Court a­greed thus far:

That in this Case it is all one, the Limitation of the Trust of a Term, or the Limitation of the Estate of a Term, all depends upon one and the same Reason. The Court is likewise agreed (which I should have said first, to dispatch it out [Page 25] of the Case, that it may not trouble the Case at all) that the Surrender of Maryot to the Duke of Norfolk, and the common Recovery suffered by the Duke, are of no use at all in this Case: For if this Limitation to Charles be good, then is that Surrender and the Recovery a breach of Trust, and ought to be set aside in Equity, so all the Judges that assisted at the hearing of this Cause agreed; If the Limitation be not good, then there was no need at all of a Surrender to bar it, nor of the common Recovery to extinguish it.

But then we come to consider the Limitation, and there it is 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.

[Page 26] It is said that is void too; and yet (sever it from the Authority of Child and Balie'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 per­tuity.

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 though 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 [Page 27] 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 I. S. or in such a short time then to I. D. though 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 onely, 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 twenty one years, or a hundred 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 inconvenience 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.

[Page 28] 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 and 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 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 [Page 29] in which it might be done, onely 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 Lord of Arundels intention might have taken effect for the younger Son. This is such a subtilty as would pose the Reason of all Mankind: For I would have any man living open my understanding so far, as to give me a tolerable Reason why there may not be as well a new springing Trust upon the same Term to go to Charles, upon that Contingency, as a new spring­ing Lease upon the same Trust: For the latter doth much more tend to a perpetuity than the former doth, I am bold to say it.

But I expect to hear it said from the Bar, and it has been said often, the Case of Child and Balie is a great Authority, so it is. But this I have to say to it, first, the point resolved in Child and Balie's Case was never so resolved before, nor ever was there such a Resolution since. Pells and Brownes Case was otherwise resolved, and has of­ten been adjudged so since. In the next place, I will not take much pains to distinguish Child and Balie's Case from this, though the word (Assigns) and the grant of the Remainder by the Mother, who was Executrix, are things that Rolls lay hold on as Reasons for the Judgment. But I know not why I may not with Reverence to the Authority of [Page 30] that Case, and the Learning of those that Adjudg­ed it, take the same liberty as the Judges in West­minster-Hall sometimes do, to deny a Case that stands single and alone of it self. And I am of Opinion the Resolution in that Case is not Law, though there it came to be resolved upon very strange circumstances to support such a Resoluti­on; for the Remainder of a Term of seventy six years is called in question when but fifteen years of it remained, and after the possession had shifted hands several times, and therefore I do not won­der that the Considerations of Equity swayed that Case.

But I put it upon this point, pray consider, there is nothing in Child and Balie's Case that doth tend to a perpetuity, nor any thing in the Settlement of the Estate there, that could be cal­led an Inconvenience, nor any Rule of Law bro­ken by the Conveyance; but it is absolutely a Resolution quia volumus. For it disagrees with all the other Cases before and since, all which have been otherwise resolved; but it is a Resolution, I say, meerly because it is a Resolution. And it is expresly contrary to Wood and Saunder's Case, which no Art or Reason can distinguish from our Case or that. For here was that Case which was clipt and minced at the Bar, but never answered. Wood and Saunder's Case is this: To the Hus­band for sixty years, if he lived so long; to the Wife for sixty years, if she lived so long; then if John be living at the time of the death of the Fa­ther and Mother, then to John; but if he die without Issue, living Father or Mother, then to Edward. Suppose these words (living Father or Mother) had been out of the Case, and it had [Page 31] been to John, and if he die without Issue, to Ed­ward, will any man doubt, but then the Remain­der over had been void, because it is a Limitati­on after an express Entail? How came it then to be adjudged good! because it was a Remainder upon a Contingency, that was to happen during two lives, which was but a short Contingency, and the Law might very well expect the hapning of it? Now that is this Case, nay ours is much stronger; for here it is onely during one life, there were two.

The Case of Cotton and Heath in Rolls comes up to this: A Term is devised to A. for eighteen years; Roll. abr. tit. Devise 612. the Remainder to B. for life, the Remainder of the first Issue male of B. which is a Contingent Estate af­ter a Contingency, and yet adjudged good, be­cause the happening of the Contingency was to be expected in so short a time. Now that Case was adjudged by my Lord Keeper Coventry, Mr. Justice Jones, Mr. Justice Crooke, and Mr. Justice Berkley, as Wood and Saunders Case was by my Lord Keeper Bridgeman, Mr. Justice Twisden, and Mr. Justice Rainsford; so that however I may seem to be single in my Opinion, having the mis­fortune to differ from the three Learned Judges who assisted me, yet I take my self to be suppor­ted by seven Opinions in these two Cases I have cited.

If then this be so, that here is a Conveyance made which breaks no Rules of Law, introduceth no visible Inconvenience, favours not of a Perpetui­ty, tends to no ill Example, why this should be void onely because it is a Lease for years, there is no sence in that.

[Page 32] Now if Charles Howards Estate be good in Law, it is ten times better in Equity. For it is worth the considering, that this Limitation upon this Contingency hapning, (as it hath, God be thanked) was the considerate Desire of the Fami­ly, the Circumstances whereof required Conside­ration, and this Settlement was the result of it, made with the best Advice they could procure, and is as prudent a provision as could be made. For the Son now to tell his Father that the provision that he had made for his younger Brother is void, is hard in any Case at Law; but it is much harder in Chancery, for there no Conveyance is ever to be set aside, where it can be supported by a reaso­nable Construction, and here must be an unreaso­nable one to overthrow it.

I take it then to be good both in Law and E­quity; and if I could alter my Opinion, I would not be ashamed to retract it; for I am as other men are, and have my partialities as other men have. When all this is done, I am at the Bar de­sired to consider further of this Case: I would do so, if I could justifie it; but Expedition is as much the right of the Subject, as Justice is, and I am bound by Magna Charta, Nulli negari, nulli differre Justitiam. I have taken as much pains and time as I could to be informed; I cannot help it if wiser men than I be of another Opinion; but every man must be saved by his own Faith, and I must discharge my own Conscience.

I have made several Decrees since I have had the Honour to sit in this place, which have been reversed in another place, and yet I was not asha­med [Page 33] to make them, nor sorry when they were re­versed by others. And I assure you, I shall not be sorry if this Decree which I do make in this Case, be reversed too: yet I am obliged to pro­nounce it, by my Oath and by my Conscience. For I cannot adjourn a Case for difficulty out of an English Court of Equity into the Parliament; there never was an Ajournment Propter Difficul­tatem, but out of a Court of Law where the pro­ceedings are in Latin. The proceedings here up­on Record are in English, and can no way now come into Parliment, but by way of appeal, to redress the Error in the Decree. I know I am very likely to erre, for I pretend not to be Infalli­ble; but that is a thing I cannot help. Upon the whole matter, I am under a Constraint, and un­der an Obligation which I cannot resist. A man behaves himself very ill in such a place as this, that he needs to make Apologies for what he does, I will not do it. I must Decree for the Plaintiff in this Case, and my Decree is this:

That the Plaintiff shall enjoy this Barony for the residue of the Term of two hundred years, the Defendant shall make him a Conveyance ac­cordingly, because he extinguished the Trust in the other and the Term contrary to both Law and Reason, by the Merger and Surrender and common Recovery. And that the Defendants do account with the Plaintiff for the profits of the premisses by them or any of them received since the Death of the said Duke Thomas, and which they or any of them might have received without wilful default; and that it be referred to Sir La­con William Child, Kt. one of the Masters of this Court, to take the said Accompt, and to make un­to [Page 34] the Defendants all just allowances; and what the said Master shall certifie due, the said Defen­dants are to pay unto the Plaintiffs, according to the Masters Report herein to be made. And that the Defendants shall forthwith deliver the posses­sion of the Premisses to the Plaintiff, and that the Plaintiff shall hold and enjoy the said Barony of Greystock, with the Lands and Tenements thereto belonging, for the residue of the said Term of two hundred years, against the Defendants, and all claiming by, from, or under them. And it is fur­ther Ordered and Decreed, that the said Defen­dants do Seal and Execute such a Conveyance of the said Term to the Plaintiff as the Master shall approve of, in case the parties cannot agree the same; but the Defendants are not to pay any costs of the Suit.