Charles Howard plaintiff v Henry duke of Norfolk all defendant Dec car a term  be limit in trust for h in tail remainder if I die without issue male in the  life of h to c in tail the remainder be good this case have be large argue and  debate at bar last term sergeant Maynard and other for the plaintiff and Mr  pollexfen and other for the defendant in the presence of the three chief  justice who I call to my assistance and now this term we deliver our opinion  the three chief justice be for the defendant and advice a dismission their  argument be report can in Charles et seq Rep in Charles I be for the plaintiff  my argument be as follow swanston this be the case the plaintiff by his bill  demand the benefit of a term for year in the barony of Greystock upon this  case Henry earl of arundel father of the plaintiff and defendant have issue  six son Thomas Henry Charles Edward Francis Bernard and one daughter the lady  Katherine Thomas Lord Matrevers the old son be non compos chin care be take to  settle by advice of counsel the estate and family as well as the present  circumstance of it will admit whereupon two indenture be make between the  Earlof arundel of one part and the duke of Richmond the marquis of Dorchester  the Lord Howard of estrick and sir Thomas Hatton on the other part and both  these indenture bear the same date saint march by one of these indenture the  estate in law be convey to they and their heir to these use videlicet to the  earl for life remainder for year to trustee to raise pound portion for the  lady Katherine remainder to the countess for life all which estate be spend  remainder for ear to the duke marquis c in trust as by another indenture of  the same date be declare remainder unto Henry and the heir male of his body  beget with like remainder to Charles Edward Francis and Bernard successive  with power of revocation then the other indenture declare the trust of the  term for year in this manner videlicet that it shall attend the inheritance so  long as Thomas Lord Matrevers or any issue male of his body shall be live but  if Thomas die without issue male in the life of Henry not leave his wife  ensient with a son or that after the death of Thomas by the failure of issue  male of Thomas the dignity and honour of earl of arundel do descend upon Henry  then Henry shall have no far swanston benefit of the term of year but the  benefit thereof shall redound to the other young child or their issue in  manner follow videlicet to Charles and the heir male of his body with like  remainder in tail to Edward Francis and Bernard successive these indenture be  seal and deliver in the presence of sir orl Bridgman and John alcorn and  Edward alcorn his two clerk who have subscribe their name as witness which be  to I a demonstration that the deed be draw by sir orl Bridgman himself after  this the contingency happen and the earldom of arundel do descend unto Henry  the now duke of Norfolk Thomas be dead without issue male then the marquis of  Dorchester be the survive trustee of the term assign this term to Marriot in  upon the same trust and Marriot assign to Henry the defendant so the term be  merge to excuse the marquis of Dorchester for cooperate in this manner it be  say that the tenant will not renew unless the estate be transfer to a young  man for fear of pay a new fine after the marquis death but nothing can excuse  Marriot from a palpable and wilful breach of trust if Charles have any title  at all to the benefit of this trust therefore the labour of this case be to  overthrow Charles title saint as void in the original limitation d as be avoid  if not by the merger at least by the common recovery which be afterward suffer  by the duke if the estate be void there be no harm do but if it be only avoid  by the surrender of Marriot to the defendant perhaps all they who have notice  of this trust swanston and have wilful procure the defeat of it may be liable  to answer for it swanston er p these kind of defence do not seem tome to be  very consistent for if the defendant counsel have be very clear in their  opinion that the limitation to Charles be void why do they advice the duke to  take so much pain to procure a surrender and extinguishment of the term and  further to bar it by a common recovery for now it be come to this point in law  that unless the limitation to Charles be void all other mean to defeat he of  it will be ineffectual I be in a very great straight by the advice which have  be give I for as on one side I may safe concur with the three chief justice  since if I shall err in so do I shall err very excusable because I shall error  cum father so on the other side where the decree must be I and I alone be to  answer for it I dare not notwithstanding the reverence I have for their advice  pronounce a decree in any case where I can concur with it myself the main  inquiry be whether the limitation to Charles be void wherein these thing be  plain saint the term in question though it be attendant on the inheritance at  first yet after the contingency happen it be sever and become a term in gross  d the trust of a term in gross can be limit no otherwise in equity than the  estate may be limit in law d the legal estate of a term for year whether it be  a long or a short term can be limit to any one in tail with a remainder over  for this tend direct to a perpetuity that nay if a term be limit to a man and  his issue and if that issue die without issue the remainder over though the  issue of the issue take no estate yet because the remainder can commence soon  than till issue fail which be foreign to expect the remainder be void swanston  for this also tend oblique to a perpetuityI car pierce and Beevess case  pollexfen that further yet if a term be limit to a man for life with  contingent remainder to his first second three and ten son in tail remainder  over though the contingency never happen yet the remainder shall never take  place for the mere intention to create a perpetuity make all void car sir  William backhouse case backhouse v Bellingham pollexfen that and burgess case  burgess v burgess pollexfen Rep Tem p finch pound I can in Charles Mod car go  a step further for there the trust be to the husband for life remainder to the  wife for life remainder to the first second three and ten son in tail  remainder to their daughter have then a daughter Elizabeth in who that  remainder may vest yet adjudge that a remainder to daughter after unbegotten  son be void though no son be then bear and the administratrix of the husband  carry away the term for still this look like a perpetuity that nevertheless if  a term be limit to one for life with twentyseven remainder for life to other  person successive who be all alive and in be so that all the candle be light  together this be good enough though it be a possibility upon a possibility as  be rule car in alford case nay if a remainder be limit to a person not in be  as to a for life remainder g to b for life the remainder to the first issue  male which b shall have for life though this be a contingent upon a contingent  yet it be only a contingency for life this also be good as be rule car cotton  v heath pollexfen l Eq can ab for to limit a possibility upon a possibility or  a contingency upon a contingency be neither unnatural nor absurd but the rule  which be lie down to the contrary swanston by Popham in the rector of  Chedingtons case   more look like a reason of art but have nothing at all of  true reason in it and I have know that rule deny at law and my Lord coke  himself deny that rule when he be chief justice as you shall find James b b  Blandford and blandford case roll more Bulstr godb cro James for however that  rule may hold in some case yet if it shall pass for a general rule my Lord  coke say it will shake all common assurance and he cite paramour v Yardlys  case Plowd command as a judgement in point that the devise of a term be good  though it be with a possibility upon a possibility and indeed every devise of  a term be so these conclusion thus lie down be only preliminary to the main  debate and though by these conclusion we may see what the law be in all those  case which do any way border upon the present question yet now it be fit to  speak to the question itself as it stand alone and be distinguish from all  these preliminary and then the point be this the trust of a term for year in  the barony of Greystock be limit to Henry swanston er p in tail proviso if  Thomas die without issue male in the life of Henry then it shall go to Charles  in tail remainder in tail to Edward Francis and Bernard successive and whether  this be a good limitation to Charles in tail be the question for the last  remainder to Edward Francis and Bernard be certain void it have be say at bar  that the limitation to Charles be void too because it be a possibility upon a  possibility but this reason as have be show already be of no moment at all  because indeed it be impossible to limit swanston any remainder of a term  after a life but it will be in effect a possibility upon a possibility it have  be say too at the bar that the proviso by which Charles interest do rise be  void because the nature of a condition be to determine all the estate and here  the proviso determine only the estate of Henry whereupon it have be compare to  sir Anthony mildmay case   l   more where a proviso to make the estate tail  cease as to one brother and go over to another be void never be rule or case  worse apply for here the proviso do as it shall do videlicet it do determine  all the estate to which it be annex observe there be no proviso at all annex  to the legal estate of the term but there be two equitable estate build upon  that term by way of trust the first be a trust attendant upon the inheritance  in Henry and to that only be the proviso annex and that be entire determine  the latter be a new trust in gross which be to rise by the proviso and ergo  can not be defeat by it but the matter chief insist on be that the limitation  to charle be against the rule of law and tend direct to a perpetuity if this  be so there needs no other reason or argument to destroy it for the law have  so long labour to defeat perpetuity that now it be become a sufficient reason  of itself against any settlement to say it tend to a perpetuity let we ergo  examine what a perpetuity be and how far that be here introduce or any other  rule of law break a perpetuity be a settlement of a estate or interest in tail  with such remainder over that no act or alienation of the present tenant in  tail can never bar those remainder but they must continue perpetual and be as  a cloud hang over the present possession such perpetuity fight against God by  affect a stability which human providence can never attain to and be utter  against the reason and policy of the commonlaw swanston but yet future  interest or spring use or trust or executory remainder which be to emerge and  arise upon contingency be quite out of the rule and reason of perpetuity and  out of the danger of they too though they be not dockable by recovery nor  capable of be bar especial if the contingency be not remote nor of long  expectation but such as will wear out in a short time examine this a little in  case of a freehold and then see how it will hold in case of a term or the  trust of a term which whether it be a long or a short term I agree make no  difference in the first place ergo I utter deny that rule which have be lie  down by my Lord chief justice north videlicet that where no present remainder  can be limit there can be no remainder upon any contingency for there be no  clear rule in law than this that there can be no remainder limit upon a estate  in fee h dyer yet public reason and the convenience of common assurance have  find a way to pass by this rule as well by way of limitation of use as by way  of devise and ergo if the father limit a use to himself and his heir until a  marriage happen and then to the son and his heir this be a good fee upon a fee  by common experience so a devise to a man and his heir and if he die without  issue before twentyone or live b to b in fee this be a good fee upon a fee as  have be resolve James pell and brown case James cro James Bridgm bowl godb  palm a point in the sergeant case bowl hall and deering in Hardr Hanbury and  cockerel Hardr jay and jay per bowl et curian style and this have be resolve  swanston long before in Elizabeth hind v sir John lion Leon Leon and with the  reason of these resolution agree Elizabeth fulmerston and steward case cro  James and Elizabeth wellock and hammond case cro Elizabeth Leon cite    Borastons case   for where the contingency expire in a little time the  inconvenience can neither be great nor long nor be there any danger of a  perpetuity this be agree by all in case of a inheritance but they say a lease  for year which be but a chattel will not bear contingent limitation nor admit  of such spring trust by reason of the the exility and meanness of the state  now as to this point the difference between a swanston er p chattel and a  inheritance be a difference only in word and not in the reason or nature of  the thing for the owner have as absolute a power over his lease as over his  inheritance and ergo where no perpetuity be introduce nor any visible  inconvenience appear there no rule of law be break and the reason to support  the spring trust of a term as well as the spring use of a inheritance be these  first because many man have no other estate but what do consist in lease for  year and ergo it be not only hard but very absurd to disable the owner of such  a estate to provide for the contingency of his family especial such  contingency as be neither foreign nor remote or of long expectation but within  view and prospect as it be and so will quick be at a end such a contingency be  that in this case videlicet the death of one man before another c and put the  case the lessee for year be to marry his son assign his term to a in trust for  himself his executor and administrator until a marriage happen during the  father life then in trust for the marry couple be this spring trust void how  swanston many settlement will that defeat so a spring trust good in that case  why not in this too second the limitation to Charles be upon this contingency  if Thomas die without issue male hire Henry so that the earldom of arundel  descend upon Henry which be a common and natural possibility now if the  limitation have stop at these word if Thomas die without issue male it can but  have be void in that case but if the addition of these other word live Henry  so that the earldom descend have not mend the matter but that the limitation  be void still then all this additional clause go for nothing which be very  absurd three which I take to be unanswerable and which I ground upon something  that fall from my Lord chief justice Pemberton suppose it have be say if  Thomas die without issue live Henry not only the trust to Henry but the very  lease itself for year shall cease and in such case a new term shall be create  for other year to vest in the same trustee for the benefit of Charles in tail  no man can doubt but this new lease will have be good and my Lord chief  justice Pemberton confess that this way the intention of the earl of arundel  may have take effect then I will be glad to hear a tolerable reason why may  not a new spring trust be limit upon the same lease as well as a new spring  lease upon the same trust sure to deny this be to make a distinction without a  difference nay I will be bold to say that a new spring lease be the hard case  of the two for it have a direct tendency to a perpetuity if such a practice be  allow and be much more inconvenient than a new spring trust upon the same  lease can be swanston fourthly No reason at all be give why this may not be  but that the law have so mean a consideration of a term of year which be but a  chattel interest it will never suffer such contingent limitation to be build  upon it now as this be no reason in any other part of the world so it be a  reason that by this time begin to be quite explode out of Westminster hall and  most certain can never take place in chancery there be a time when this reason  do so far prevail that all the judge of England be assemble in chancery for  the assistance of the Lord chancellor rich declare the law to be that if a  lease be devise to a for life and if a die live b b to have the residue of the  term this remainder be void for in the consideration of the law the life of a  man be a great estate than any lease for year though a have the whole term so  it be rule Edwd dyer and the same opinion hold current in other case until  Elizabeth dyer but this be a reason against sense and nature it be impossible  for the world to be long govern by it and ergo in Elizabeth dyer the matter  begin to be a quaere and in Elizabeth dyer it be adjudge the remainder be good  which be the same case with Welden and Elkingtons case in the commentary  Plowden when the chancery see the judge of the commonlaw begin to govern  themselves by the true reason of the thing and not by the vulgar reason of the  book they take a course to fix the judge in this opinion for then it begin to  be a common suit in chancery for he who have the remainder of a term to  exhibit his bill against the devisee for life to compel he to put in security  not to bar the remainder and it be often so decree Elizabeth price v Jones  tooth and again by my Lord Ellesmere James coal v more sir Francis more Pt at  last to prevent a chancery suit videlicet swanston James Matthew man case    swanston er p and James Lampets case   the judge come to be uniform agree that  the remainder be good by way of executory devise and that the devisee for life  can not bar it now at last notwithstanding the exility of a term and the  meanness of a chattel interest there may be a devise of it for life with  executory remainder but it be true the judge do not wise refuse to enlarge  this rule to executory devise in tail with remainder over for that be direct a  perpetuity yet why they shall refuse to admit of a devise without such  contingent limitation or trust which do not lead to a perpetuity nor be attend  with any inconvenience be hard to understand nor be any reason give but child  and Baylys case roll palm W Jones cro James five in the last place ergo since  all that have be or can be material object be reduce to the single and naked  authority of child and Baylys case it will be fit to see saint what child and  Baylys case be d how far this authority ought to sway the present case saint  if that case be as it be report by sergeant roll then it be nothing at all to  this question for there the case be say to be this a term of seventysix year  be devise to the wife for life remainder to William heath the son proviso if  William die without issue during the term not during the life of Thomas Thomas  shall have it adjudge a void remainder of this there can be no manner of doubt  for it be the common case of a remainder after a entail of a term and a direct  perpetuity and the case have often be cite to this purpose and general have be  take in Westminster hall to import no more though of late it have be more  narrow look into swanston if the case be as it be report by justice Jones  videlicet if William die without issue live Thomas then to go to Thomas and  still adjudge a void remainder then it be a direct authority in the very point  but the case be not altogether as justice Jones have report it for I have see  a copy of the record upon this occasion and by the way there be no book in the  law so ill correct and so gross misprint as justice Jones report the true  report of this case and that which come near to the record be the report of  justice croak and with he agree sergeant roll in his abridgment title devise  and three the case be a term of year be devise unto Dorothy the wife for life  remainder to William and his assign for all the residue of the term proviso if  William die without issue live at the time of his death that Thomas shall have  it adjudge the remainder void this also be in effect the present question but  yet it must be observe that the resolution there go upon several reason which  be not to be find in this case as William have the term to he and his assign  there can be no remainder of it to Thomas of which word assign justice Jones  take no notice Dorothy the devisee for life be also executrix and she do  assent and grant the remainder to William both which reason sergeant roll in  his abridgment lie hold of William may have assign his interest and then his  assignee must have hold it till William die without issue after which there  can be no remainder William may have have issue and that issue may have die  without issue live William and then a remainder to Thomas after such a  possibility be foreign to expect the record go a great deal far and say if  Thomas die without issue live at his death then it shall go over to daughter  which be a plain affectation of a perpetuity by swanston multiply of  contingency it appear by the record that the lease for year be make and Philip  and mary the father will be make Eliz the grant and assignment by the mother  and executrix to her son William be Eliz the son William reassigned all to his  mother in Elizabeth and die the mother live till throw Thomas the son never  set on foot his pretence to the remainder till James before which time there  have be six several assignment to purchaser and the last purchaser have renew  with the bishop of Worcester no wonder then if after so long a acquiescence by  Thomas and when there be but a very few year to come of that lease whereof  Thomas claim the remainder the judge hold hard upon he and choose rather to  declare Thomas remainder void than to disturb so many transaction among  purchaser but now allow that child and Baylys case be as full a authority for  the defendant as he can wish I say then that child and Baylys case stand alone  and that it be never so resolve before nor since nay the contrary have  swanston er p be resolve since and first the case of Colton and heath car roll  devise pollexfen Eq can ab seem contrary to it for there a term be devise to a  for eighteen year remainder to b for life remainder to the old issue male of b  for life resolve by Jones croak and Barkly that this second contingent  remainder be good because this second contingency last no long than during one  life but the most clear and direct resolution in the point be the case of wood  and sander car in this court July pollexfen can in Charles the case be this  the trust of a long lease be limit and declare thus to the father for sixty  year if he live so swanston long then to the mother for year if he live so  long then to John and his executor if he survive father and mother and if he  die in their life have issue to their issue but if he die without issue live  father and mother remainder to Edward in tail remainder to Nicholas in tail  John die without issue live father and mother resolve the remainder to Edward  be good for though the whole term may have vest in John and his issue if he  have survive father and mother yet that contingency never happen and be a  contingency which will wear out in a little time the remainder be good by the  uniform opinion of Lord Bridgman custos Twisden and Rainsford which be as  contrary to child and Baylys case as can be so that though I may seem to be  singular in my opinion this day yet I take myself to be support in the reason  I go upon by seven great man videlicet Lord Coventry Jones croak and Barkly  Lord Bridgman Twisden and Rainsford thus we see the opinion of sir orl  Bridgman when he be a practiser and draw this deed continue with he when he be  custos and to judge upon oath and it be due to the memory of this great man to  acknowledge he a person very eminent both for learning and integrity it have  be urge at the bar where will you stop if you do not stop at child and Baylys  case I answer I will stop everywhere when any inconvenience appear no where  before it be not yet resolve what be the utmost bind of limit a contingent fee  upon a fee and it be not necessary to declare what be the utmost bind to the  spring trust of a term for whensoever the bind of reason or convenience be  exceed the law will quick be know I have do with the legal reason of this case  the equitable reason be much strong saint it be prudent to take care that when  the honour descend upon swanston Henry a little better support shall be  provide for Charles the next brother d this prudent care be the effect of a  deliberate consultation of the whole family after advice with learned counsel  upon it d though it be uncertain whether Thomas will die live Henry yet it be  near certain that whenever Thomas do die he will die without issue for it so  much concern the honour of the family not to have it propagate by he that care  be take so to keep he that he may never marry till he be recover it be a very  hard thing for a son to tell his father that the provision make for his next  brother be void and it be yet hard to tell he so in chancery especial where  the reason for make the conveyance void be not gross and apparent but depend  upon such a nicety and subtlety of law as will justify different opinion the  last retreat of the defendant in this case be to the common recovery by which  and by the merger of the term the legal estate for year be bar and go this  point be not worth speak to for whether the law be so or not be not material  because the trust of the term if well limit unto Charles whatsoever have be do  to break in upon this trust and to defeat it by they who have notice of the  trust and be privy to it though it be never so good in law yet it ought to be  set aside in equity and in this we all agree in opinion now in this case  neither the duke nor Mr Marriot can be ignorant of the trust limit to Charles  and if Thomas duke of Norfolk be dead in October or before the marquis  Dorchester assign to Marriot or Marriot to the defendant and before the  recovery suffer then they must needs know that the trust be actual attach and  vest in Charles at that very time when they go about to defeat it and if a  heir will either enter upon the trustee or procure the trustee swanston to  release in breach of trust he himself be bind to make good the trust nay the  land stand charge with the trust in the hand of the heir and he alone may be  sue without make the trustee party as be twice resolve by my Lord Bridgeman  custos once in m car year in the case between Spencer and the earl of thomond  swanston er p and again in the same term in another case between Jackson and  Jackson but here the heir and Marriot the trustee be both defendant wherefore  there ought to be a decree for the plaintiff for his quiet enjoyment during  the residue of the year for a account of the profit since the death of Thomas  the duke and Marriot both to be responsible to the plaintiff nevertheless I  have so great a respect for the contrary opinion of the three chief justice  that I will not present suffer this decree to pass but will suspend my opinion  for some time and possible consider how many assurance may be shake and how  many noble family may be concern in the consequence if such kind of settlement  be overthrow it may be fit at last to adjourn this case into parliament for  difficulty but of this I declare nothing at present Lord nottingham final  judgement of which his lordship ms contain no note may be find in can in  Charles but if it have be say and if he die without heir live b to b in fee  this will not prevent the escheat per north perhaps case stand upon a  different reason yet quaere because to see I eaden ratio et eaden law