atkins case smith on the demise of dorm against PACKHUPST et all the d of  February on a Writ of error in the house of lord from the judgement in b r  mich Geo S c stram andr vin pl all the judge be unanimous of opinion that the  fine and recovery suffer by Robert dorm and his son when he come of age be no  bar for a good estate be vest in the trustee during the life of Robert dorm he  and his son can not by any act defeat the remainderman without the consent and  join of the trustee during the life of Robert dorm as the freehold be in they  Lord chief justice will in pursuance of your lordship order I and my brother  have meet to consider of the question propose and be unanimous in our opinion  but as it be a point of great consequence and nicety your lordship will excuse  I if I take some time in state the case and the reason of our opinion which I  shall do in as clear and Intelligible a manner as I can Mr John dorm in the  year upon the marriage of his old son John dorm make a settlement of his  estate with several limitation and as the question in the cause arise upon the  word of the settlement which be agree on both side I shall repeat they after  limit a estate to his son John dorm and the heir of his body he limit his  estate as follow it and in default of such issue to the use and behoof of  Robert dorm one of the brother of the say John dorm for the term of year if he  shall happen so long to live and from and after the death of the say Robert  dorm or other soon determination of the estate limit to he for year to the use  and behoof of t S and I r and their heir during the life of the say Robert  dorm upon trust to preserve the contingent use and estate herein after limit  from be defeat and destroy and for that purpose to make entry and bring action  as the case shall require but to permit the say Robert dorm and his assign to  receive the rend and profit of the say estate during the term of his life and  after the end or other soon determination of the say term to the use and  behoof of the first and every other son of the say Robert dorm in tail male  with remainder in the same word to Fleetwood another brother of the say John  dorm remainder to Peter another brother and the last remainder to eusebe the  father of the lessor of the plaintiff for year if he so long live remainder to  the trustee in the like manner as in the limitation to Robert dorm and to the  first and every other son of eusebe dorm in tail male Robert dorm have one son  Fleetwood and when he come of age Robert and his son Fleetwood levy a fine to  make a tenant to the prcipe and suffer a recovery in which Fleetwood be vouch  the son die without issue then Robert dorm die leave no other son but four  daughter Fleetwood and Peter be both dead without issue and eusebe be dead his  son the lessor of the plaintiff and the near survive remainder man make his  actual entry within five year and be so seize demise to the plaintiff c atkins  the two question propose by your lordship be first whether the remainder limit  to the first and every other son of eusebe be good remainder in their first  creation and second whether the fine and recovery suffer by Robert dorm and  his son bar these remainder before I proceed to the question I shall lie down  some general rule and maxim of the law with respect to the construction of  deed first it be a maxim that such a construction ought to be make of deed ut  res to greater extent to be strong how to pass away that the end and design of  the deed shall take effect rather than the contrary another maxim be that such  a construction shall be make of the word in a deed as be most agreeable to the  intention of the grantor the word be not the principal thing in a deed but the  intent and design of the grantor we have no power indeed atkins er p to alter  the word or to insert word which be not in the deed but we may and ought to  construe the word in a manner the most agreeable to the meaning of the grantor  and may reject any word that be mere insensible these maxim my lord be find  upon the great authority coke Plowden and Lord chief justice hale and the law  commend the clever the cunning of judge in construe word in such a manner as  shall best answer the intent the art of construe word in such a manner as  shall destroy the intent may show the ingenuity of counsel but be very ill  become a judge have lie down these maxim I shall proceed in this case the  intention of the party can be doubt the grantor manifest intend to continue  the estate in his name and blood as far as he can by the rule of law the law  will not admit a perpetuity but the intention of the party so far as be  consistent with the rule of law ought to be observe in this case it be say  that the intention of the party by appoint trustee to preserve the contingent  remainder be only to preserve the estate till there be issue of a Robert dorm  and that they be not mean to preserve the distant remainder but if this have  be the case how come Robert dorm not to be make tenant for life for even  though he have be tenant for life the trustee can have preserve the remainder  till his son come of age but the plain intent of make he tenant for year only  be to prevent he and his son from bar the estate in remainder without the join  of the trustee the effect of which be hat it can not be bar without the  consent of the trustee during the life of Robert dorm which be go as far as  the law will permit the objection to the limitation to the first and other son  of eusebe c be these first that the commencement of the atkins estate to the  trustee and to the first son be at the same time and consequent the latter  limitation be void second that the limitation be inconsistent and therefore  void and three that where there be a estate limit upon two disjunctives which  can stand together because if one happen the other can that in such case it  shall take effect upon neither but the settlement shall rather be construe to  be void as to the first we be clear of opinion that the limitation of the  estate to the trustee and to the first son c commence at different time in  support of the first objection it wag say that a estate limit during the life  of another to commence at his death be void this be certain but when the deed  go on and say or other soon determination of the term for year this manifest  fix a commencement of the estate to the trustee at the determination of the  term which may happen not only by effluxion of time but may take effect by  surrender or forfeiture several way in the lifetime of Robert dorm or eusebe  and we be of opinion that the estate of the trustee may so commence but the  estate to the first son c can not commence till the death of their respective  father it be say by in LordCoke that the word term though it be more proper  apply to a term for fear yet may mean a estate for life and it be plain in  this deed use in that sense the trustee be to permit Robert dorm c to receive  the profit during the term of his life and the estate to the child be not to  commence till the end or other soon determination of the say term which by  refer the relative to the last antecedent must mean the term of his life as to  the word soon determination insert after the estate for life these be  insensible and may be reject they be probable throw in current branch or by  follow a precedent and if the precedent be before the reformation when there  be a civil death as well as a naturan by enter into religion it may then have  a meaning as to the second point since we be of opinion that there be a  different commencement of the estate limit to the trustee and the issue in  tail there be no inconsistency as to the three it be high absurd and against  reason and I think against law too but in support of this the case of  Camberford and birch lev be cite by the defendant counsel there the settlement  be with a proviso that in case none of the brother or sister of a or any of  the child be live then immediate or after a term of year end to the use of b c  and d his brother successive in tail male remainder to the plaintiff a die  without issue b and c die without issue male but b have issue a daughter and a  atkins himself have sister live this the court hold to be one sentence and a  condition precedent that none or the brother or sister of a or any of their  child be then live and which as it have not happen atkins er p all the  remainder be void and judgement for the defendant and it be not at all  determine on the necessity there be that the remainder shall take effect on  both disjunctives but that case do not come up to the present for it be never  intend that the remainder shall vest on the death of Robert dorm but as appear  by the express word on a determination of the estate for year before his death  and such a construction as the defendant counsel contend for will destroy not  only the remainder to eusebe but every one of the remainder limit by the deed  except the remainder to John dorm and his heir and the word of a deed must be  extreme strong which will induce we to construe all the limitation in the deed  to be void we therefore be of opinion that the limitation to the first and  every other son of eusebe be good remainder as to the second principal  question whether the limitation to the first and other son of eusebe be well  bar by the fine and recovery without the join of the trustee it be insist upon  to show they be bar first that no estate at all vest in the trustee second if  any estate vest it be a contingent estate or a right of entry only and three  that whatever estate it be it be effectual bar by the fine and recovery as to  the first we be of opinion that a estate commence in the trustee immediate  after the determination of the term for year by effluxion of time forfeiture  or otherwise as to the second whether the estate to the trustee be a vest or  contingent estate appear to we the great difficulty in the case the doctrine  of contingent remainders be very nice and intricate and if we be to cite all  the case in the book I fear we shall rather puzzle than explain the difficulty  the definition of a contingent remainder lie down by the counsel for the  plaintiff that a remainder be contingent when it be uncertain whether it will  take effect or not be by no mean the legal notion of a contingent remainder it  be not the uncertainty of take effect in possession that make it contingent if  a estate be limit to a for life remainder to b and the heir of his body every  one will allow that this be a vest remainder and yet it must be allow that it  be uncertain whether b may not die without heir of his body before the death  of a and consequent the remainder may never take effect in possession atkins  we have consider this point a good deal and be of opinion that all contingent  remainder may be reduce to these two head see Mr fearne division of contingent  remainder essay on contingent remainder page to h first where a remainder be  limit to a person not in be and who may possible never exist and second where  a remainder depend u on a contingency collateral to the continuance of the  particular estate I will give a instance of each if a estate be limit to a for  life the remainder to first his son before he have any child this be a  contingent remainder of the first kind for it be uncertain whether he will  have any son if a estate be limit to a for life and after the death of I S to  b in fee or after I S shall come from Rome this be a contingent remainder of  the second kind for it be uncertain what time I S shall die or shall come from  Rome for as the law for many good reason will not permit the freehold to be in  abeyance it expect the contingent remainder to take place when the particular  estate determine and it can immediate vest in those case when it be uncertain  whether the contingency will happen the present case come under neither of  these head the trustee be in be and capable of take the estate do not depend  upon any contingency collateral to the continuance of the particular estate we  therefore be of opinion that subject to the term of year a good estate of  freehold vest in the trustee during the life of Robert dorm Duncomb v Duncomb  lev Fearne to f I will put one case suppose a person grant a estate to a for  year if a shall so long live and after the death of a to another suppose a  shall outlive the term or commit a forfeiture be not the freehold vest in the  grantor during the life of a and have not he a power to enter and if he have a  estate in this case may he not grant it away upon the same term and will not  his grantee have the same estate but consider what will be the consequence if  the trustee do not take but upon a contingency their heir can take and if the  trustee die before the contingency happen the limitation to their heir fail  and if the estate limit here to the trustee be contingent so be the limitation  to trustee in all settlement and consequent all the settlement for these year  ever since the statute of use may be question but can we conceive my lord that  every one have be mistake for these year atkins er p and that this new light  be just now arise to we sure it be a much less evil to make a construction  even contrary to the common rule of law though I think this be not so than to  overthrow I may say settlement for it be a maxim in law as well as reason  common error compose law as to the right of entry I shall scarce have think it  deserve a answer but that some weight have be lie upon atkins it we be of  opinion that a right of entry always suppose a estate for what be a right of  entry without a right to hold and receive the profit therefore I have always  think that if a estate be grant to a man reserve rend and in default of  payment a right of entry be grant to a stranger it be void so Litt S a case be  cite to endeavour to show that a right of entry may subsist without a estate  but I be incline to think some material circumstance in that case be omit and  be agree in our judgement that the law be otherwise and for these reason are  of opinion that not a mere right of entry not a contingent estate but a estate  of freehold be vest in the trustee during the life of Robert dorm the last  point to be consider be what will be the effect of the fine and recovery as to  the fine it have be insist that it be a feoff upon record and that a fine even  by tenant for year be not void as to this fine it must be consider either as a  fine of lessee for year or as a fine of a reversioner in tail fine of lessee  for year confess be not absolute void but operate by way of estoppel and  therefore bar the party claim under they a reversioner may levy a fine for  this reason and it bar the issue in fail but it can never be conceive that the  fine of a reversioner can get the freehold let we therefore consider it as the  fine of a lessee for year it have be say that lessee for year in this case may  have bar all remainder by a feoff that a fine sur do grant and render supposes  a gift which mean a feoff and therefore be equivalent to a feoff I be of  opinion that even a feoff will not have be a bar unless the trustee have be  asleep for they may have immediate enter and possess the estate if they have  lie by till the recovery have be perfect that may have be a bar but that be  not to be suppose it have be say that a fine suppose a feoff but the word do  through it sometime signify a feoff have many other signification it may  signify grant of incorporeal inheritance which will not pass by feoff and  therefore do not necessary suppose a feoff a feoff differ very material from a  fine for in notoriety of fact the feoff be suppose to be make open upon the  land and the feoff be immediate put into the possession but a fine have  nothing public except the proclamation and therefore by the act of parliament  of Henry non claim run only from the proclamation whereas if a fine suppose a  feoff it will have its effect from the time of acknowledge which be a private  transaction a feoff can only lie of land a fine may be of tithe and other  incorporeal inheritance cruise on fine atkins great weight have be lie upon  Lord coke authority who say a fine be a feoff upon record   Litt a black Com  he be certain a great man which have make some people think every thing he say  be right though he have his mistake but in answer to it I shall offer two or  three great authority and one of equal age and authority with Lord coke in the  case that be cite at the bar it be determine by Lord chief justice holt and  Lord Macclesfield that a fine be a feoff upon record when the party have such  a estate as will entitle he to levy a fine that be a estate of freehold  otherwise a fine have no effect whatsoever with respect to a stranger and  operate as a estoppel only and bar none but the party claim under it as to the  authority I promise which be equal to the authority of Lord coke it be Lord  coke himself who in the page before that of the case cite   light a have these  expression a feoff be the most ancient and sure way of conveyance both for  that it be solemn and public and therefore best prove and also for that it  clear all disseizins c ante townsend v ash post shield v atkins post atk with  respect to the particular operation of a feoff in create a seize the reader be  refer to har   light b note and to the essay on use and trust to which can be  do even by the fine and recovery Brereton v gamul ante vol carter v  Barnardiston p W so that it be Lord coke own opinion that a feoff can effect  that which a fine and recovery can and therefore can long be maintain that he  have lie it down a fine be to all purpose a feoff upon record atkins er p it  be say that if a fine be void in this case how will it make a forfeiture there  be sure many case where a act may be void as against another and yet be a  forfeiture to the person I will give one instance that of a copyhold tenant a  lease make by he be certain void against the lord and yet be a forfeiture upon  the whole we be of opinion that the fine and recovery be no bar to the  remainder