c Charles Howard v henry his brother duke OF norfolk S c very full Charles can  to Lord chancellor chief justice north chief justice Pemberton chief baron  Montague trust of a term for year post case Rep c the earl of Arundel have  issue Thomas the Lord Maltravers his old son Henry the defendant his second  son the plaintiff his three son Edward his four son and Bernard his five son  be seize of the barony of graystock c in feesimple convey the same to the use  of himself for life remainder to his lady for life remainder to trustee for  year remainder to the defendant and the heir male of his body by another deed  bear date the same day wherein he declare the trust of the term for year he  make a recital of the say term and of his intention that it shall attend the  inheritance and then declare the trust in manner follow videlicet that they  shall permit Henry Howard the defendant and the heir male of his body to  receive the profit but in case Thomas Lord Maltravers shall die without issue  male of his body whereby the dignity of the earl of Arundel shall descend upon  Henry that then they shall permit Charles the plaintiff and the heir male of  his body to receive the profit and in case he shall die without issue male  then to freeman permit Edward and the heir male of his body to receive the  profit and for default thereof to Bernard freeman er p the earl of Arundel and  his lady be dead and Thomas Lord Maltravers be dead without issue in the life  of Henry the earldom descend upon Henry the survive trustee convey over the  term to Henry but before the conveyance of the term to he Henry suffer a  recovery of the land in question to the use of he and his heir Charles the  plaintiff prefer his bill against the defendant to have the trust and estate  execute to he accord to the aforesaid limitation the Lord Maltravers be dead  without issue male and the earldom be descend upon the defendant two question  be make whether this limitation of the trust of the term to Charles after it  be limit to Henry and the heir male of his body upon the contingency aforesaid  be not void in its creation admit it to be good in its creation whether it be  not bar by the recovery suffer by Henry the now duke to the first point it be  argue by Maynard the attorneygeneral William all that this be a good  limitation of a trust of a term in its creation for although it be true that a  trust of a term can be limit in tail with remainder over yet here it depend  upon a contingency which must be determine in the life of a man it be all one  as though it have be limit for life with remainder over which have always be  admit to be good ever since the resolution of Matthew man case   and if by any  rule of law or equity it can be make good it ought to be so here for this  trust be limit to Henry while his brother be live but if his brother shall die  without issue whereby the honour and great possession belong to it shall come  to Henry then the father design it to be a provision for the plaintiff  consider that the defendant will then be ample provide for and stand in no  need of it so that it be plain the intent of the father who make the  settlement and have power of the estate and admit that this term if it be  consider abstract can not be so limit yet this be attendant upon the freeman  inheritance so long as the limitation of the term and the estate be the same  and afterward it come to be a term in gross and so may be good to the  plaintiff although the remainder over be void it be agree by all that a term  limit to attend a inheritance may have as many limitation and remainder as the  inheritance ante c p and note villiers v villiers atk but then it must take  its fate with the inheritance and that which bar the inheritance will bar the  trust of the term quod to be concession per all men if it be a term mere  attendant if a trust of a term be limit to a and the heir male of his body  with remainder over the executor or administrator of a shall have the whole  term ante c p and note and so it be if it be limit to a so long as b shall  have heir of his body quod to be concession and this can be no perpetuity  because the restraint of alienation be only during the life of one person and  it have always be hold that if forty life be in be a term may be limit to all  of they successive because they be like so many candle which be all light  together and must expire and therefore it can have no tendency to a perpetuity  quod to be concession curian do v lie t r why then the case here be that here  be a successive limitation upon a contingency which must determine in the life  of a person and though it be limit to Henry and his heir male of his body heir  male be void until the contingency be determine because non be haeres to live  and the contingency be to determine in the life of Henry and they cite the  case of Colton and heath roll and they say the reason of the case of child and  baily roll Rep W Jones cro James be quite different from this for the reason  why they adjudge the limitation over in that case to be void be because of the  repugnancy for there the whole term be devise to the first person and his  assign and then to limit a remainder over be repugnant like the case of  Stukele and butler in hob Rep p where a estate give to a man and his assign  provide he shall notalien be hold void and they rely much upon the case of  pell and brown cro James where it be hold a fee may be limit upon a fee  determinable upon a contingency to happen in a short time as to the second  point it be argue for the plaintiff that this limitation of the trust over be  not bar by the recovery it be admit that if it have be a term mere attendant  upon the inheritance that which have bar or alter freeman the inheritance will  have bar or alter that but this be a term in gross when the trust of it and  the inheritance come to freeman er p be divide in their limitation and this  trust be precedent to the estatetail and although a recovery will bar any  limitation subsequent to the estatetail or any charge upon the subsequent  remainder hunt v Gateler Poph yet what be precedent to the estatetail or  Chargeable upon it as a rentcharge c it be not in the power of tenant in tail  to bar or destroy Pledgard v lake cro Elizabeth it be argue for the defendant  by pollexfen Keck winnington c who go upon the point as to the first point  they hold that the limitation of the trust to Charles be void in its creation  for after it be limit to Henry and the heir male of his body it can not be  limit over notwithstanding that it be but until Thomas his elder brother shall  die without issue male of his body whereby the earldom shall descend upon  Henry and they lie it down for a rule that when the trust of a term for year  be once limit to a man and heir of his body let it be determinable upon what  contingent it will it can be limit over lion v Mitchell I mad post append c  for if that shall be once suffer there will be no bind to it for as it may be  limit upon a contingency to happen in one life so likewise it may in two and  so to twenty and so likewise if it be upon a contingency to fall out in a  certain number of year it may be ten twenty or one hundred year which must  needs tend to a perpetuity and they observe that once a opinion do prevail  that the limitation of a trust of a term may be in tail with remainder over as  appear in more but the contrary be since hold as in more and though the  contingency be to fall out in a short time that be not material for if the  term be ever so short such a limitation will be void and yet there it can have  no long continuance as in the case of child and Baily the term be but  seventysix year and the base of low and Windham be but a term of ninetynine  year determinable upon life cro car roll cro James mallot v Sackville and they  say the case of pell and brown be nothing to this case for that be a  limitation of a fee and a great reason freeman of that case be upon the  construction of the statute of will which give man power to devise land of  inheritance which they can not at commonlaw the judge have always look upon  the resolution in Matthew man case to be to the utmost extent and have often  say they will never go beyond that and a great reason of that resolution be  take from Boothbys case die they cite the case of Perne v beef car b r a  devise of a term to a for life then to his wife for life then to their child  with remainder over the remainder over be hold to be void and the case of low  and Wyndham be adjudge in the king bench car a devise of a term to his wife  then to Nic his son and if he die without issue remainder over the remainder  over be hold to be void and they say that the case of child and Baily be a  strong case than this and for the case of pell and brown that be adjudge by  the same judge as child and Baily and if we look to the time it be betwixt the  judgement give in child and bailiff case and the affirmance of it in the  exchequer and therefore certain those judge do not take the reason of those  case to have any relation to one another and they say another reason why it be  bad be because here be a possibility limit upon a possibility which the law  will not endure for here must be and in pound by Thomas without issue and the  honour must descend upon Henry and this die without issue must be in the life  of Henry but to that it be answer that that be not possibility upon a  possibility because all the contingency be to determine at one time though it  be a complicate possibility so that take it to be a trust of a term in gross  it be void in its creation then to the second point take it to be a trust of a  term attendant upon the inheritance it be bar by the recovery for that which  bar the inheritance will likewise bar the trust of the term attendant which be  admit take it to be a trust pure attendant and they cite the case of Hudson  and Benson Keble lev Mod car b r a limitation of a estate to a man and the  heir of his body and if he die without issue then a rentcharge to Moseley and  this rentcharge be bar by the recovery tenant in tail with power to make lease  to commence after freeman his death without issue make a lease and suffer a  recovery this recovery shall bar the lease because freeman er p a recovery do  in a manner protract queen retract the ordinary phrase overreach though equal  quaint will be more Intelligible the estate tail so that the remainder nor any  thing out of it can take effect by the commonlaw the rule be as lie down in  the argument in the text as to lease be bar by the recovery of the tenant of  the freehold partridge v strange Plowd   Litt but the stat of Gloucester  Edward c and the stat h c express provide that tenant for year may falsify a  feign recovery and now tenant in tail who make a lease for year by a  subsequent recovery only let we in the encumbrance upon the new acquire fee  beck v Welsh will and see Vaughan and post append c and in chancery it have be  hold that if a trust be limit in tail with remainder over if the beneficiary  and trust suffer a recovery this will bar all the trust in remainder though  there be no tenant to the praecipe in raw c north v Champernoone Charles can  and see the case collect and the subject full discuss coll jurid a recovery  bar all remainder and the dependency of they so that it have be hold that if a  term for year be grant to commence after the death of I S without issue and  afterward a estate be grant to I S and the heir of his body that I S may bar  this lease by a recovery notwithstanding it be grant before the estate tail be  create and so it be hold in the case of Southam v clarke although in the case  of gooden and clarke Rep tempt holt it be hold otherwise and so that case be  doubt so that they conclude that if it be a term attendant it be certain bar  by the recovery if it be a term in gross it be void in its limitation and to  make it partly attendant so long as it go with the estate and then to leap off  and subsist by itself will be a very strange construction and the way to bring  in perpetuity which the law abhor and will be contrary to the reason which  allow the entail of a trust of a term so long as it attend the inheritance  which be because then it stand and fall with the inheritance and so there be  no danger of any perpetuity curian advisare vult afterward in Hillary term  follow the Lord chancellor the two chief justice and the chief baron give  their opinion seriatim and the judge be all three of opinion that the  limitation to Charles be void and they go upon child and bailiff case and hold  that the limitation over of the trust of a term after it be limit to a man and  the heir of his body though it be upon a contingency be void and that they  will not carry it far than the judge have do in Matthew man case but chief  justice Pemberton say that such a provision may have be make well enough  another be and that have be by create two term videlicet to have limit a term  for freeman sixty year to this duke and the heir of his body proviso that if  the Lord Maltravers shall die without issue whereby the dignity shall descend  upon he then that term to cease and a new term to arise to be in trust for  Charles and the heir of his body c and this will have be well enough vide post  case