brown case lady catherine pelham and another appellant Susannah gregory and  other respondent that march Mews dig twelve where a testator devise a  leasehold for year to one for life who have no child with remainder to his  first and other son in tail male remainder to another for life and to his  first and other son in tail male with several remainder over if the second  tenant for life have a son bear before the first tenant for life have a son  the remainder in tail limit to that son will vest and all the subsequent  remainder which be good as possibility while the contingency of a near heir  come in be be in suspense be Self facto from that moment determine and though  such tenant in tail shall die a infant the next day after his birth yet the  ownership of the term must vest and his administrator must take it subject  only to be defeat by the birth of a son of the first tenant for life which  will still be prior to such intestate infant in the order of limitation John  duke of Newcastle be at his death seize in feesimple of diverse honour castle  manor message land tenement rend and hereditament and also seize to he and his  heir of diverse copyhold message land and tenement and of diverse message land  and tenement hold by he by virtue of several lease for life and also possess  of or entitle to several other message land and tenement by virtue of several  lease for long term of year some absolute and other determinable on the death  of one or more person or person and particular the duke be possess of diverse  message land and tenement at Shimpling call Shimpling park in Suffolk of the  improve yearly value of pound which he hold by lease from the crown grant to  William Hussey and James Biggs date d June Charles two for a term of ninety  year subject together with other estate in Nottinghamshire to pound S d a year  Payable to his majesty his heir and successor and be so seize and possess he  make his will date the that of September and thereby after devise to his wife  Margaret duchess of Newcastle and to his daughter the lady Henrietta Cavendish  Holles therein call lady harriot Holles certain particular estate therein  mention and describe he devise all other his honour castle manor lordship  manor house park chase land tenement rectory advowson rend and hereditament as  well leasehold and copyhold as freehold wheresoever and of whatsoever nature  and quality they be and every of they with their and every of their right  royalty member and appurtenance and all his estate and interest therein in law  and equity in manner follow videlicet unto the respondent the duke of  Newcastle by his then name and description of the honourable Thomas Pelham son  and heir apparent of the right honourable Thomas Lord Pelham for life  remainder to his first and other son in tail male successive remainder to  Henry Pelham by the name and description of the honourable Henry Pelham one  other of the son of the say Thomas Lord Pelham for life remainder to his first  and other brown son in tail male successive remainder to William vane second  son of Christopher Lord Bernard for life remainder to his first and other son  successive in tail male in like manner remainder to Gilbert vane then son and  heir apparent of the say Christopher Lord Bernard for life remainder to his  first and other son successive in tail male in like manner remainder to his  own right heir for ever in this will there be a proviso that in case any  person whatsoever who shall or may be entitle to have or take the say honour  castle manor and premise by virtue of any of the aforesaid limitation shall at  any time do or suffer or cause to be do any act or deed whatsoever whereby to  prevent or hinder his the say testator leasehold and copyhold estate or any of  they to go to such person and person and in such manner as by virtue of his  say will his freehold estate be thereby limit and intend to go then and from  thenceforth the person or person do or suffer or cause to be do any such act  or deed shall not have or take any benefit or advantage by his say will or any  the limitation thereof any brown er p thing therein contain to the contrary  thereof in anywise notwithstanding and the testator then give the residue of  his personal estate after payment of his debt and legacy to the duchess his  wife and appoint her and Thomas Lord Pelham and the honourable Henry paget Esq  executor on the that of July the duke die leave his say duchess and the say  lady Henrietta his only child and heir at law soon afterward several suit at  law and equity and in the spiritual court arise wherein the validity of the  say will be contest with respect to the duke be real and personal estate pen  which suit lady Henrietta intermarry with the right honourable Edward Harley  common call Lord Harley who be afterward earl of Oxford and Mortimer and in  some short time after this marriage a treaty of accommodation have be propose  a agreement be on the that of July conclude between Lord Harley and lady  Henrietta his wife and the respondent the duke of Newcastle and the say Henry  Pelham or his friend he be then a infant whereby it be agree and declare  between the say party and the respondent the duke for and on behalf of himself  and the say Henry Pelham his brother covenant and agree that lady Henrietta  shall have to her and her heir certain particular estate therein mention and  Lord Harley on behalf of himself and lady Henrietta his wife do thereby  covenant and agree with the respondent the duke and Mr Pelham that all other  the honour manor barony castle lordship and estate as well leasehold and  copyhold as freehold which duke John be possess of or entitle to in law or  equity at the time of his death shall be hold and enjoy by the respondent the  duke for his life with such remainder over and subject to such limitation and  restriction trust power and proviso and in such manner as in duke John will be  mention express limit or declare brown touch or concern the same and that all  the burgage house and land in Aldborough in Yorkshire belong to duke John at  his death or to which Lord Harley and lady Henrietta be or be afterward  entitle in law or equity and also certain manor land and hereditament in the  county of Dorset and wilts hold of the bishop of Salisbury for life shall be  hold and enjoy by the respondent the duke with such remainder over and in the  same manner as the other honour manor and hereditament therein before agree to  be hold by his grace be to be hold and enjoy by virtue of the say agreement  and that Lord Harley and lady Henrietta shall permit and suffer the say will  to be prove in the ecclesiastical court or court of delegate but no use be to  be make of the probate to the prejudice of this agreement and it be thereby  mutual agree that a act of parliament shall be obtain if possible for confirm  establish and execute the say agreement after the execution of this agreement  the will of duke John be duly prove in the prerogative court of Canterbury and  in the court of delegate by the duchess dowager of Newcastle and Henry paget  the then survive executor and in the that and that of George I a act of  parliament be make and pass entitle a act to render more effectual the  agreement that have be make between Thomas Holles duke of Newcastle Henry  Pelham Esq Edward Lord Harley and the lady Henrietta his wife William vane and  Gilbert vane esqr son of Christopher Lord Bernard or any of they in relation  to the will and estate of John late duke of Newcastle and for the settle the  same in such manner as may be agreeable to the intent of the say agreement and  for other purpose therein mention whereby it be enact that the say will and  agreement shall be and the same be thereby ratify establish and confirm except  so far as the same be therein after reverse alter or change and it be also  enact that the estate which be final agree to be enjoy by lady Henrietta shall  be vest hold and enjoy in such manner as be therein mention and that certain  freehold estate which be final agree to be enjoy by the respondent the duke  and the other person claim in remainder after he shall be and the same be  thereby vest and settle upon and from the decease of duke John in and upon and  to the use of the respondent the duke for life remainder to the use of his  first and other son in tail male successive remainder to the use of the say  Henry Pelham for life remainder to the use of his first and other son in tail  male successive remainder to the use of the say William vane for life  remainder to the use of his first and other son in tail male in like manner  remainder to the use of the say Gilbert vane for life remainder to the use of  his first and other brown er p son in tail male in like manner accord to the  true brown intent and meaning of duke John will remainder to the right heir of  duke John and it be also thereby enact that all leasehold estate for life  which duke John be seize of or entitle to on the that of August with their  appurtenance shall be and the same be thereby vest and settle in like manner  in upon and to the use of the respondent the duke for life with all and every  such and the like remainder over as aforesaid and it be thereby further enact  that all and every other the manor rectory advowson tithe land tenement and  hereditament whatsoever whereof or wherein duke John or any other person or  person in trust for he at or immediate before his decease have any term or  term for year or chattel interest legal or equitable other than such as be  thereby before vest in lady Henrietta or her trustee and except Pontefract  park and the leasehold estate at Orton in Huntingdonshire therein mention  shall be and the same be thereby vest in the respondent the duke for life and  it be enact that after his death the same shall he hold and enjoy by such  person or person who will have be entitle to the same in case the say act have  not be make and it be thereby further enact that the respondent the duke  during his life and every other person and person who for the time be shall be  seize or possess of any of the say leasehold manor land tenement rectory tithe  and hereditament by virtue of the limitation therein contain when and as often  as he or they shall respective think it convenient shall have full power to  surrender any such lease or lease for life life or year and make the same  absolute void to the intent only that it or they may be renew or a new lease  or lease may be make of the premise comprise in such surrender lease or lease  respective at the time of such surrender or surrender and that every such new  lease and renew lease from time to time as often as they or any of they shall  be renew shall during the continuance thereof be hold and enjoy by such person  or person who will have be entitle to such surrender lease or lease in case  the same have continue in be and it be thereby further enact that nothing in  the say act contain shall be take construe or intend to confirm the respective  limitation in the say will contain of the several term for year whereof duke  John die possess by virtue of the say agreement and act of parliament the  respondent the duke enter on all the manor message land tenement and  hereditament freehold copyhold and leasehold which be thereby limit to he for  life with remainder over as aforesaid and continue in possession and receipt  of the rend and profit thereof and several of the lease for year which be in  be and by virtue of which some of such leasehold brown message land and  tenement be hold at duke John death be afterward from time to time renew the  respondent the duke never have any issue male but the say Henry Pelham have  issue two son both of who die in his lifetime videlicet Thomas his old son who  die on the that of November age about ten year and Henry his young son who die  the that of the same month and the say Thomas Pelham the son be the person in  who the first estate tail in order of limitation in the say freehold manor  message land tenement and hereditament limit to the respondent the duke for  life be vest by virtue of duke John will and of the say agreement and act of  parliament the appellant be advice that the absolute estate and interest of  and in all the manor message land and tenement hold by lease for year and  which be by the say agreement and act of parliament limit to the respondent  the duke for life vest in the say Thomas Pelham subject to the estate for life  of the duke and to the contingency of his have a son bear and also subject to  the estate for life of the say Henry Pelham therein in case the duke happen to  die in the lifetime of the say Henry Pelham without have have any son bear and  the appellant be also advice that the absolute estate and interest of and in  all such estate hold by lease for year subject as aforesaid be part of the  personal estate of the say Thomas Pelham at his death and that as such the  same on his death he die intestate do belong subject to the estate for life of  the say duke and to such contingency as aforesaid to the say Henry Pelham as  his father and only next of kin the say Henry Pelham be so entitle die on the  that of march have brown er p make his will and appoint the appellant and  Richard arundel and Hutton Perkins Esq since decease executor thereof who all  duly prove the same and thereby become entitle to possess and receive all the  personal estate and effect whatsoever belong to the say Henry Pelham at the  time of his death and the say Richard arundel and Hutton Perkins afterward die  such right become sole vest in the appellant Mr Pelham do not in his lifetime  take out administration to the say Thomas Pelham his old son but after his  death letter of administration of the personal estate of the say Thomas Pelham  be grant to the say Richard arundel and since his death letter of  administration de good non be grant to the appellant west William vane the  second son of Christopher Lord Bernard and which William be afterward create  Lord viscount vane in the kingdom of Ireland have issue two son Christopher  who die a infant without issue and intestate in the lifetime of his father and  William his young son the now respondent Lord vane who survive he and obtain  letter of administration of the personal estate of the say Christopher his  brother and Gilbert brown vane the old son of Christopher Lord Bernard have  issue Henry his old son who after his father death be create earl of  Darlington these party be please a few year since to dispute the appellant  right in the say leasehold estate for year and to insist that they or one of  they be or be entitle to the absolute right and interest in all such leasehold  estate expectant on the respondent the duke be death without issue male either  in his or their own right or as Lord vane be administrator of his brother  Christopher in consequence of this dispute the respondent Lord vane on the  that of November file his bill in the court of chancery against the duke of  Newcastle and the appellant pray that the defendant may be restrain from sell  any of the say estate and may bring into court all lease and other deed relate  thereto and that the respondent Lord vane right to the say estate or such part  thereof as he shall appear to be entitle to may be secure to he and that such  of the lease as be near expire or proper to be renew may be renew Lord vane  offer to pay a proportion of the fine thereon the late earl of Darlington some  time after fill the say bill die leave the respondent the present earl his son  and heir and have make he executor of his will who as such make the like claim  to the leasehold estate as be make by his father and thereupon and upon the  appellant Mr west obtain administration of the personal estate unadministered  of Thomas Pelham the son on the death of Mr arundel the respondent Lord vane  file his bill of revivor and supplemental bill against the respondent the earl  of Darlington and the appellant west to have the benefit of the original bill  and the proceed thereon the several defendant have put in their answer the  cause be hear before the Lord keeper Henley on the that of July when his  lordship be please to order that the bill shall be dismiss the appellant be  entitle to the estate hold by lease for year they after the dismission of the  bill do by a agreement in write date the that of September agree with Mr  George Gregory since decease for the sale of the estate land and premise call  Shimpling park subject to the life estate of the respondent the duke therein  and to the contingency of his have a son bear for pound and do covenant and  agree with Mr Gregory that the respondent the duke shall within six month from  the date of the say agreement procure a new and effectual lease from the crown  to be make and grant to himself or such person or person as he shall nominate  in trust for the use and limitation in the will of duke John of the say estate  call Shimpling park and of all message farm house land and hereditament  comprise in the say term of year for such reversionary term as will fill up  brown the term then in be to year from the date of such new lease at the  annual rend of pound S d be a proportionable share in respect of the say  estate at Shimpling of the say annual rend of pound S d Payable for the same  and for the aforesaid estate in Nottinghamshire and that they will within the  space of three month next after such new lease shall be make and grant by such  good and effectual conveyance assignment and assurance in the law as the  counsel of Mr Gregory shall reasonable advice or require well and effectual  assign assure transfer and make over to Mr Gregory his executor administrator  and brown er p assign all such the contingent reversionary interest of the  appellant of and in the say park land and premise for and during not only all  the residue and remainder if any which shall be then to come and unexpired of  the say term of year but also of such term and interest as shall be grant by  the say new lease and that in such assignment assurance and conveyance as  aforesaid all such usual necessary and proper covenant as well on the part and  behalf of the appellant as of Mr Gregory as their respective counsel shall  advice and require shall be insert and contain and Mr Gregory in consideration  of the premise thereby covenant that he his executor administrator or assign  will at or before the time of execute such assignment and assurance as  aforesaid pay the appellant the say pound in full for the absolute purchase of  such their contingent reversionary interest in the premise as aforesaid and  also will accept of such assignment or assurance thereof as aforesaid and  execute a counterpart thereof if thereunto require the appellant be desirous  that this agreement shall be forthwith carry into execution several time apply  to Mr Gregory to perform the same on his part they also make the respondent  the duke acquaint with it and that in order to enable the appellant to perform  the same on their part it will be necessary his grace shall procure the lease  of the say estate so agree to be sell to be renew accord to the term of the  agreement but Lord vane and the earl of Darlington persist in their claim in  the say leasehold estate and insist that the appellant have no right thereto  the appellant in Michaelmas term exhibit their bill in the court of chancery  against the say George Gregory and the respondent Lord vane the earl of  Darlington and the duke of Newcastle set forth the several matter aforesaid  except the suit commence by the respondent Lord vane and charge that the claim  of the respondent Lord vane and the earl of Darlington be without foundation  in law or equity and that the appellant be well able to make a good title to  the say estate at Shimpling subject only to the estate for life of the  respondent the duke and to the contingency of his have a son bear and  therefore pray that the respondent Lord vane and the earl of Darlington may  set forth what right title or brown interest they have in or to the say  leasehold estate at Shimpling and how they make out the same and that the  agreement of that September may be special perform and carry into execution  the appellant thereby offer to perform the same on their part and pray also  that the lease of the say estate may be renew accord to the term of the  agreement and that the respondent the duke may pay the fine and fee Payable  thereon and that Mr Gregory may upon the obtain of such new lease and upon the  appellant assign to he all their right and interest in the say leasehold  estate at Shimpling pay the pound purchase money for the same to the appellant  to this bill Mr Gregory by his answer declare that he be ready and Willing to  perform the agreement provide a new lease shall be obtain agreeable thereto  and a good title can be make by the appellant the respondent Lord vane by his  answer say that Lord vane his father have issue Christopher his old son who  die a infant and without issue in his father lifetime and he the respondent  his young son and insist that the say Christopher be the first person in point  of time in be who have or take any estate or inheritance in the premise in the  will and act of parliament mention and that he die a infant the respondent as  the only survive son and heir apparent of his father become the first person  in be who take any estate of inheritance in any of the say premise by virtue  of the say limitation and that Lord vane his father also die many year since  leave the respondent his only son and heir and that he on his father death  become seize of a estate tail in remainder immediate expectant on the  determination of the estate limit to the duke and to Mr Pelham his brother and  to their first and other son respective of and in all the freehold and  copyhold honour manner message land and hereditament in the say will and act  of parliament mention and that be also become entitle to all the leasehold  estate as well for life as year in the say will and act mention subject to the  contingency of the duke be and Mr pelham die without issue male and therefore  submit to the judgement of the court that the absolute estate and interest in  the estate hold by lease for year and limit to the respondent the duke for  life do not vest in Thomas Pelham the old son of Henry Pelham subject to the  estate for life brown er p of the duke and to the contingency of his have a  son bear and subject also to the estate for life of Mr Pelham therein in case  the duke have happen to die in his lifetime without have any son bear and that  the limitation of such contingent right or interest in the respondent Lord  vane be to arise on the death of the respondent the duke and Mr Pelham without  issue male and they be both in be at the time of make duke John will the same  be a good and valid limitation to arise within such a reasonable compass of  time as have be allow at brown law and in equity in limitation of leasehold  estate and he further insist that such his right and interest be well ground  and that the right and interest set up and claim by the appellant bill be  without foundation in law or equity and that therefore they can not make a  good title to a purchaser the respondent the earl of Darlington by his answer  say that he be the old son and heir of Henry late earl of Darlington who be  the old son and heir of Gilbert late Lord Bernard and pray that such interest  in the premise in question as he be by law entitle to by virtue of duke John  will and the say act of parliament and the agreement therein mention may be  preserve to he and the respondent the duke by his answer admit that he be in  possession of Shimpling park and say that there be only twelve year then to  come in the lease he be ready and Willing to procure a lease thereof for a  further term accord to the agreement in the bill state or such other lease as  can be obtain provide he be not on account thereof put to any further charge  than keep down during his life the interest of the money to be pay for the  fine fee and expense on obtain such lease but submit to the court whether if  such new lease shall be obtain the fine fee and expense on obtain the same  ought not to be a charge on the absolute interest in the say lease hold estate  and to be bear by the person or person who be or be or on his death shall be  entitle to such absolute interest therein the respondent only keep down the  interest thereof during his life and in case the court shall be of opinion  that such fine fee and expense ought not to be charge on the absolute interest  in the say leasehold estate then he submit whether he ought to be bind to  obtain any such new lease as he have not any right or title to the say estate  long than for his life after the come in of these answer Mr Gregory die have  make his will and the respondent Susanna Gregory sole executrix thereof who  prove the same whereupon the appellant exhibit their bill of revivor against  mrs Gregory and the cause be duly revive against her on the that that that and  that of November and that of December the cause be hear before the Lord keeper  Henley when his lordship be please to declare that he be of opinion that as in  this case the claim of the respondent Lord vane and the earl of Darlington be  not within his cognizance to determine he can not decree a specific  performance of the agreement in question against the say Susanna Gregory and  therefore dismiss the appellant bill as against the respondent Lord vane and  the earl of Darlington with cost and as against the respondent Susanna Gregory  and the duke of Newcastle without cost brown from this order of dismission the  present appeal be bring and on behalf of the appellant it be say c York t  jewel that the question of right between the party be extreme clear upon the  know and fix rule of law term for year be not allow to be settle in the same  manner as freehold estate nor be capable of be limit by proper word of  inheritance in the case of freehold successive remainder in tail may all be  vest at one and the same time and may take effect in possession successive as  the respective limitation to each tenant in tail and the heir of his body  shall determine at any remote distance of time defeasible only by some tenant  in tail in possession who shall think fit to suffer a common recovery but a  vest estate tail in a term for year to one and the heir or heir male of his  body imply the absolute ownership of it though improper express as much as if  the tenant in tail be entitle to it by a correct limitation to himself his  executor administrator and assign all subsequent limitation therefore after a  general failure of the issue of such tenant in tail be void unless make to  take effect within the compass of a life or life in be or unless the  successive limitation in tail of such term or leasehold estate be contingent  in their creation and then they be consider as possibility which will final be  either valid or void effectual or ineffectual as the brown er p event happen  for instance a testator as in this case devise a leasehold for year to one for  life who have no child with remainder to his first and other son in tail male  remainder to another for life with the like remainder to his first and other  son in tail male with several remainder over if the second tenant for life  have a son bear before the first tenant for life have a son the remainder in  tail limit to that son will vest and all the subsequent remainder which be  good as possibility while the contingency of a near heir come in be be in  suspense be Self facto from that moment determine and though such tenant in  tail shall die a infant the next day after his birth yet the ownership of the  term must vest and his administrator must take it subject only to be defeat by  the birth of a son of the first tenant for life who will still be prior to  such intestate infant in the order of limitation that the instance here  propose exact correspond with the circumstance of the present case and may be  support by legal reason and accurate authority that such be the nature of the  right under duke John will a specific performance of the agreement ought to  have be decree the purchaser be full inform of the nature of the right the  party entitle to dispute the question stand before the court claim under the  same instrument with the vendor all of they express submit that question to  the judgement of the court and particular the respondent Lord vane without  suggest either by their answer in the cause or by the argument of their  counsel at the bar the remote possibility of prejudice to themselves from a  declaration to be make by the court upon the matter of right so litigate brown  but it be say that Lord vane and the earl of Darlington who right suppose they  have any can take effect in possession during the life of the respondent the  duke be not liable nor can be call upon to do any particular act to affirm the  title of the purchaser and therefore the court of chancery can not determine  or take cognizance of their right in the lifetime of the duke mere for the  sake of quiet question between the appellant and the purchaser to this  objection it be answer saint that the court have jurisdiction to give relief  on the subject matter of the agreement may declare right and determine all  question legal or equitable incident to that relief as between the party to  the contract where a purchaser bring his bill upon the agreement the court may  decree a performance against the vendor where the vendor bring his bill the  court may decree against the purchaser even though stranger whether party or  not party to the suit may appear to have some claim by title paramount that of  the vendor depend on prior entail and different conveyance if the fact be  intricate or doubtful the court refer it to a master in the first instance to  see whether a good title can be make and upon his report the cause come on  afterward for judgement and many precedent may be find where purchaser have be  decree to accept title and yet the outstanding claim of other have not be  determine so as to conclude and bind they in case the question of title happen  to be a single question of law or equity depend upon the construction of a  deed or will which be as ripe for the judgement of the court upon the plead as  it can be after a reference to the master the court will take cognizance  original and determine it between the party and if this jurisdiction be not  exercise not only many agreement for purchase but many trust affect real  estate for the payment of debt in which the right of many person be involve  will be long suspend or total defeat but d this case stand peculiar clear of  every difficulty in the way of the relief pray not only the submission of all  the party but the clearness of the question and the impossibility of future  prejudice to the right of the respondent or of any general inconvenience in  respect of the precedent support and authorize that relief and if such  difficulty shall prevail no agreement for the sale of a contingent right can  ever be allow in equity suppose Mr pelham old son the first tenant in tail or  absolute owner of the leaseholds who come into be have live to the age of and  contract debt no sale can have be make for the payment of those debt though  the expediency have be ever so great nor can they have be value or include in  the administration of his asset till it have be see whether he will survive  the death of the duke of Newcastle without issue male even though his creditor  have contract to sell his contingent right in those brown leaseholds and the  case be exact the same as it now concern the asset of those who represent he  it be further object that the question of right in this case be entire legal  brown er p and that whatever determination may be make as to the claim of Lord  vane and the earl of Darlington yet on the death of the duke before the  expiration of the term whoever shall stand next entitle in the order of  limitation may bring a ejectment for recover the possession and the appellant  by their bill have pray no injunction to restrain it but to this it be answer  that many decree for the specific performance of agreement of this sort  between vendor and purchaser have be pronounce without any injunction grant to  affect other person not party to such agreement but it be apprehend that the  submission of the respondent by their answer give a clear jurisdiction to the  court to declare the right for the benefit of the appellant and in case action  shall hereafter be bring at law to try the question the court of chancery will  enjoin those proceed upon the ground of such submission that this reason be  agreeable to constant experience in that court where a general submission to  account between merchant and their correspondent or trustee and those who be  interest in the trust will open state account and amount to a waiver of  release and legal bar though otherwise they may have be insist on and find the  equitable jurisdiction of the court to unravel the whole transaction mere by  force of such submission it be therefore hope that the say decree or order of  dismission will be whole reverse and the agreement be specifical perform and  carry into execution on behalf of the respondent Lord vane it be argue c Pratt  g Perrot that his right be a mere legal right and proper determinable in a  court of law if the event shall happen that the respondent the duke shall die  without issue male and if he shall leave issue male which may likewise yet  happen then the right of the present party can never come in question a court  of equity ought not therefore to compel this respondent to litigate a right by  anticipation which may either never come in question or if it ever shall will  be proper determinable in a court of law upon a ejectment and not in a court  of equity that this be a bill frame to draw from the court a opinion in order  to give a sanction to a unmarketable title and a court of equity ought not to  decree a specific performance of a agreement for a purchase where it be  doubtful whether a good title can be make to the purchaser that suppose it  have be now proper to have determine upon the right of the party the  determination ought to have be that no such estate or interest vest in Thomas  Pelham as be transmissible to his representative for the right of the issue  male of the present duke if he shall have any brown of Thomas Pelham and the  respondent Lord vane and the earl of Darlington be not possibility but  contingency with several aspect each of they have a contingent right of take  and enjoy these leasehold estate on the happen of certain event but the vest  or attach of the right ought to be suspend till the event shall happen when it  will be certain know who be the person entitle under the limitation of the  will but those event can never happen during the respondent the duke be life  but if a absolute interest in the leaseholds can vest at all in any one person  during the lifetime of the duke it be submit that this interest vest absolute  in Christopher vane he be the first person in be to who these leasehold estate  be limit in tail it be therefore hope that the decree will be affirm and the  appeal dismiss with cost on the part of the earl of Darlington it be insist a  forester that no estate or interest subsequent in point of limitation to the  life estate of the respondent the duke of Newcastle and the remainder in tail  to his male issue can vest until his grace death without issue male and  consequent nobody can be entitle until that event shall happen and when it do  happen the person in be and then entitle to take the leaseholds in remainder  will take the whole term that the testator intent be clear to carry the  limitation of his leasehold estate as far as possible with his freehold and  this intent be answer by the respondent construction as the leaseholds will  upon the duke be death without male issue go to the person who will take the  freehold estate agreeable to the general construction of will contain family  settlement wherein both at law and in equity the limitation of leaseholds so  as to carry they with the freehold estate be favour and extend where such  extension do not tend to a perpetuity of which there be no danger in this case  since upon the duke be death it will be see who be the party to take and brown  er p he will take the whole interest that if the leaseholds have vest in Mr  pelham son they can not have divest out of he for let in a after bear son of  the duke of newcastle as a estate vest by purchase can never afterward divest  and it be a strange pretence that the same act videlicet the birth of a son to  Mr Pelham shall vest a estate absolute in such son so as to defeat the  subsequent limitation and yet keep it in contingency with respect to the duke  be issue male so as to vest it in any after bear son of his No precedent  either of law or equity can be adduce to warrant this notion whereas the  respondent construction by keep all the limitation in contingency till after  his grace death full answer the testator intent remove all difficulty and be  free from any sound objection for the respondent the duke of Newcastle it be  say W de grey I Browning that he be Willing to procure a new lease of the  premise in question accord to the agreement between the appellant and Mr  Gregory brown provide he be not on that account put to any further charge than  keep down during his life the interest of the fine fee and expense on such  renewal and it be submit whether if such new lease shall be obtain the fine  fee and expense thereof ought not to be a charge on the absolute interest in  the say leasehold premise and to be bear by the person or person who will on  the duke be death be entitle to such absolute interest but if the house shall  be of a different opinion on this point then the duke submit whether he be  bind to obtain any such new lease he not have any interest in the premise in  question long than for his life and for the respondent mrs Gregory it be say a  t Abdi that she be ready to perform her testator agreement for the purchase of  the estate in question accord to the term of that agreement and on have a good  title but it be hope that she shall not be compel to any such performance  until the duke be claim relative to the fine fee and expense of renew the  lease and the claim of Lord vane and the earl of Darlington shall be settle  and determine and in case the house shall be of opinion that the appellant or  one of they will be entitle to the estate in question on the duke be death  without have a son bear alive for the remainder of the term in the lease and  that the principal money to be pay for the fine fee and expense of obtain a  renewal of the lease ought to remain a charge on the premise after his grace  death the respondent hope that a proportionable abatement on account of such  fine fee and expense will be make to her out of the purchase money and that  she shall be pay her cost after hear counsel on this appeal the follow  question be put to the judge I whether the property of the leasehold estate  for year devise by the will of John late duke of Newcastle vest in Thomas  Pelham the infant son of Henry Pelham Esq decease subject to the respondent  the duke of newcastle interest therein for his life and the contingency of the  say duke be have a son two whether the property of the say leasehold estate  subject as aforesaid be transmit to the representative of the say Thomas  Pelham the infant and the Lord chief baron of the exchequer and Mr justice  denison be present the Lord chief baron deliver their concurrent opinion upon  these two question in the affirmative whereupon it be declare that the  leasehold estate for year devise by the will of John late duke of Newcastle  subject to the respondent the duke of newcastle interest therein for his life  and defeasible by the say duke be have a son belong to the appellant as stand  in the place of the say Thomas Pelham the infant son of Henry Pelham Esq  decease and that the agreement enter into between they and George Gregory  decease for the sale of their estate and interest in Shimpling park ought to  be carry into execution and it be therefore brown order and adjudge that the  decree complain of except such part thereof whereby the appellant bill be  dismiss with cost against the respondent Lord vane and the earl of Darlington  shall be reverse and that such part thereof shall be affirm and it be further  order that the say agreement shall be perform and carry into execution and  that a new lease of the say premise call Shimpling park shall be procure by  the appellant for such reversionary term as will make up the residue of the  term in be year from the date of such new lease accord to the term of the say  agreement in case such new lease can be obtain and that the respondent the  duke of Newcastle shall accord to the submission in his answer pay the fine  fee and expense of such new lease and that the whole sum to which such fine  fee and brown er p expense shall amount to be compute and settle by one of the  master of the court of chancery shall be charge and secure upon the say  premise and that the duke accord to his say submission shall discharge and  keep down the interest which shall accrue due thereon during his life and that  it shall be refer to the say master to settle such security and make such  provision for keep down the interest as aforesaid and that within three month  after such new lease shall be grant the appellant shall by proper conveyance  and assurance to be approve by the say master in case the party shall differ  about the same at the expense of the respondent Susanna Gregory assign the  same premise call Shimpling park with the appurtenance to the say respondent  Susanna Gregory for the residue of the term which shall then be subsist in the  present lease and for the term to be comprise in such new lease free from  encumbrance but subject to the respondent the duke of newcastle interest for  his life in both the say term and to such security as aforesaid and defeasible  upon the say duke be have a son and that all proper party shall join in such  conveyance and assurance as the say master shall direct and that it shall be  refer to the say master to consider and settle how much ought to be allow and  deduct out of the purchase money of pound mention in the say agreement in  respect to the charge and encumbrance to be bring upon the say premise on  account of the fine fee and expense of such new lease as aforesaid and that  upon the execution of such conveyance and assurance as aforesaid the  respondent Susanna Gregory shall pay to the appellant the residue of the say  purchase money after deduct thereout so much as shall be allow by the say  master in respect of the say charge and encumbrance and that the appellant  shall pay to the respondent the duke of Newcastle and Susanna Gregory their  cost of this suit in the court of chancery to the time of make the say decree  to be tax by the say master and that the consideration of subsequent cost from  that time shall be reserve and that any of the party shall be at liberty to  apply to the say brown court for further direction as occasion shall require  and it be further order that the say court shall give all necessary and proper  direction for carry this judgement into execution jour vol p