case John Parkhurst and other plaintiff joseph smith on they of I dorm esquire  defendant in error d February a estate be limit after several precedent estate  for life and in tail to the use of a for year if he shall so long live and  from and after the death of a or other soon determination of the estate limit  to he for year to the use of trustee and their heir during the life of a in  trust to preserve contingent estate etcetera and for that purpose to make  entry and bring action etcetera but to permit the say a to receive the rend  and profit etcetera during the term of his life and after the end or other  soon determination of the say term to the use of the first and other son of a  successive in tail male with diverse remainder over by the expiration of all  the precede estate a come into possession of the land limit to he for year and  have a son he together with that son when he come of age levy a fine of the  land to make a tenant to the precipe and suffer a recovery of the same in  which the son be vouch the son die without issue and afterward a die without  leave any other son the next survive remainderman make his actual entry within  five year and upon a question whether the fine and recovery have bar his  remainder it be hold that it have not there be no freehold in the tenant  against who the recovery be have the freehold be in the trustee during the  life of a judgement of the court of king b affirm this point depend entire on  the question whether the freehold be in the trustee during the life of a or  not for if it be the recovery be not well suffer for want of a good tenant to  the precipe and consequent do not bar the remainder but if the trustee have  not the freehold then it be in the son and of course he be capable of make a  good tenant to the precipe and the recovery in that case be well suffer for  the court of king b hold that the fine by lessee for year a or the reversioner  the son brown er p can only operate by way of estoppel to bar the party claim  under such lessee or reversioner but do not create a freehold as a feoff will  have do it be insist that the freehold be not in the trustee because the  remainder to the trustee be void in its creation be to commence after a S  death and then to hold during his life which be repugnant and can never take  effect at all if not void in its creation it be a contingent remainder because  it be uncertain whether it will ever take effect as the term of year may not  determine in a S lifetime brown that if it be neither void nor contingent yet  it do not amount to a legal estate but be only a right of entry but the court  resolve that the remainder be not void in its creation its commencement not be  restrain to the death of a but limit from these death of a or other soon  determination of the estate for year and therefore may take effect by  surrender forfeiture or effluxion of time in a S life time that it be not a  contingent remainder be limit to person in be without any condition precedent  to be perform it do not depend on the death of a but on such other event  videlicet forfeiture surrender etcetera as may determine the particular estate  from the nature of the estate itself that it be not a mere right of entry but  a legal estate for that a grantor can reserve a right of entry to a stranger  nor can a right of entry subsist without a estate therefore the trustee have  the freehold for the life of a see Fearne count Rem edit I and the opinion of  the chief justice in the court of king b in vin and in the house of lord in  atk vide ante vol go p title fine can viner vol p can atkins fearne count Rem  that edit I strange SC but not S p Mr dorm have fail in recover upon the  former ejectment bring in the name of Berrington bring another in the name of  the present defendant smith for the same estate and upon the trial of this  second ejectment at the bar of the court of king bench by a special jury in  Michaelmas term a special verdict be find state the several fact find by the  former verdict with this addition videlicet that Mr dorm make five several  actual entry upon the premise in question the first on the that of January the  second on the that of October the three on the saint of January the four on  the that of October and the five on the that of November and that on the that  of the same month he make the demise in the declaration mention this special  verdict be twice argue in the court of king bench and the question be whether  the common recovery suffer by Robert dorm and Fleetwood his son in order to  defeat the limitation in the settlement of under which the lessor of the  plaintiff claim be good for want of a good tenant to the precipe for if the  recovery be not good then the limitation in the settlement will take place and  the lessor of the plaintiff will be entitle under it as it appear by the  special verdict that all the intermediate remainderman between John dorm who  make the settlement and the father of the lessor of the plaintiff be dead  without issue male and the court upon mature deliberation be unanimous in  opinion that the lessor of the plaintiff be entitle under the settlement of  the remainder therein limit not be bar by the recovery as there be no freehold  in the tenant against who the recovery be have and give judgement accord the  defendant therefore bring a writ of error in parliament to reverse this  judgement contend d rider I strange that the estate be limit to the trustee  after the death of Mr justice dorm during his life be a void limitation  because it can never take effect in possession and that it can not be make  good by reject the word after his death because the sense will not be complete  without they that there be no instance upon the construction of deed where  such material word which be use by the party to denote brown when the estate  shall take effect in possession have ever be reject nor can the word after the  death of Robert dorm by any construction be take to signify after the end of  the term because by brown er p express word the estate be limit after the end  of the term to the first son of Robert dorm in tail and which express  limitation must prevent any such construction even by implication that if the  limitation to the trustee shall not be void but the word after the death of  Robert dorm may be reject and the limitation to the trustee take effect in the  disjunctive videlicet or other soon determination action of the term yet it be  conceive that the trustee by force of those word take no vest remainder but  their estate remain in contingency for no remainder can be say to be vest  unless it be so limit as to come into the possession of the remainderman upon  every determination which may happen of the particular estate but the word  other soon determination of the term can extend to a determination of the term  by effluxion of time because the estate after the end of the term which in a  legal sense always signify after the end by effluxion of time be by express  word limit to the first son of Robert dorm so that the word other soon  determination can extend only to a determination of the term by surrender or  forfeiture which may or may not happen it be admit that when a remainder be  limit to take effect in possession upon a event which of necessity must happen  such remainder will vest but if it be limit to take effect in possession upon  a event which may never happen then it do not vest now it be not a event which  must necessary happen that Mr justice dorm term shall end by surrender or  forfeiture because it may determine by effluxion of time or death so that the  present case be no more than this videlicet a limitation to Mr justice dorm  for year if he so long live and if his estate shall determine by surrender or  forfeiture it be the same thing for the conditional word if make no difference  then to the trustee during his life and winch be plain no more than a  contingent remainder the consequence of which must be that on the death of sir  William dorm the freehold vest in Fleetwood the son of Mr justice dorm and  consequent be well convey by the fine to the tenant to the precipe and the  recovery be well suffer that this construction of the limitation to the  trustee be most agreeable to and best answer the intention of the party to the  settlement the end and design of appoint trustee to preserve contingent  remainder in this and all other marriage settlement be only to give they a  right to enter upon any conveyance make by the particular tenant for life or  year to destroy the contingent remainder before they arise but not to prevent  the particular tenant and his son who have a vest remainder in tail from  suffer a common recovery and if this limitation be construe not to vest any  estate in the trustee it give the father and son no more power over the estate  than they have when the father be make tenant for life for in that case brown  although there be trustee to preserve contingent remainder yet the father and  son in the life of the father and without the trustee join can bar all the  subsequent remainder but by construe the freehold to be in the trustee when  the father be only tenant for year though his first son be of age no  settlement can be make on the marriage of the son or for payment of the debt  of the family though the father and son join without the consent of the  trustee which will be very inconvenient and it be apprehend that it will have  be no breach of trust if the trustee have join in suffer the recovery suppose  however the freehold to be in the trustee yet by the fine levy by Robert dorm  and Fleetwood his son dorm Parkhurst and John Parkhurst be make good tenant to  the precipe for it must be admit that if the estate have be convey by Robert  dorm and Fleetwood to dorm and John Parkhurst by a feoff upon the land they  will have have the freehold without the trustee join and in that case the  recovery will have be good and it be apprehend that the fine have the same  effect such a fine be in many book call a feoff upon record and no where  judicial determine to be otherwise and if the freehold pass by the fine then  also the recovery be well suffer that in the present case the daughter of the  say Robert dorm who be in possession of the estate by virtue of this recovery  be the granddaughter of John dorm who make the settlement and the heir of  Robert the father and Fleetwood their brother who be the remainderman in tail  and join in the recovery and for who benefit the trustee be create whereas Mr  dorm the lessor of the plaintiff be only a collateral relation and the most  remote remainderman in the whole settlement for these reason therefore it be  hope that the judgement give in his favour will be reverse brown er p on the  other side it be argue f Chute t Bootle that the title of the lessor of the  plaintiff to the premise in question be clear find it appear by the special  verdict that the several intermediate remainderman between he and John dorm  who make the settlement be all dead without issue that the estate limit to the  trustee to preserve the contingent remainder be a vest remainder to take  effect in possession during the life of Robert dorm upon the determination of  the particular estate limit to he for year either by effluxion of time  forfeiture or surrender and though that part of the limitation which depend  upon the contingency of Robert dorm death be of no operation or effect to vest  a estate in possession in the trustee on that single event yet as the  particular estate for year may determine in his lifetime by either of the  other event happen I e forfeiture or surrender the remainder vest in the  trustee take effect in possession and a remainder so limit be well warrant by  the rule of law and be neither void or contingent that to make this a  contingent remainder from these word or other soon determination will be  contrary to the establish brown notion of what the law call a contingent  remainder for such a remainder can only be one of these three way either where  the person to who it be limit be not in be or where the particular estate may  determine before the remainder can take place or where some collateral  accident must happen before it can take effect but none of these fall out in  the present case for the person to who the estate be limit videlicet the  trustee be exist the remainder to they will take effect immediate upon the  determination of the particular estate by surrender or forfeiture and here be  no collateral accident to happen before it can take place but only such as  make a determination of the particular estate and what be imply in its very  creation the word or other soon determination be what be imply in every term  for year and to which every term be subject by surrender or forfeiture they be  no other than what be make use of in all common limitation of estate to  trustee to preserve contingent remainder in every settlement to put therefore  such a construction upon these word ask to make the estate arise from they to  the trustee a contingent remainder will disappoint the very end propose by  they it will frustrate the intention of the party and endanger most of the  family settlement in the kingdom for that the design of this limitation to the  trustee be to preserve the contingent remainder from be destroy be evident  from the settlement itself and that it be the intention of he who make the  settlement to preserver and continue this estate in the male line of the  family be most manifest from this that he limit it to the male line in a  remote degree in preference to the daughter of his old son sir John dorm who  be his heir at law now take it that the estate limit to the trustee be a vest  remainder in they to take effect in possession upon the determination of the  particular estate limit to Robert dorm as it plain be this put a end to all  other question for then the case take abstract from the fine stand thus Robert  dorm tenant for year if he so long live and from and after the determination  of that term then to trustee and their heir during the life of Robert dorm  remainder to Fleetwood his son in tail he and his son suffer a common recovery  consider as the recovery of Robert dorm it be void because he be only tenant  for year can not give a freehold to another and without which there can not be  a good tenant to the precipe for to make he so he must have a freehold in he  and take it as the recovery of Fleetwood the son it fail the freehold be in  the trustee and not in he he have only a remainder expectant on the  determination of their estate And as to the fine levy by Robert dorm and  Fleetwood his son which have be insist on to answer the supposition of a  freehold gain that way it stand thus consider as the fine of Robert it be void  for want of freehold it be settle beyond all doubt that a fine by tenant for  year operate nothing and be absolute void and consider as brown the fine of  Fleetwood it be equal so for want of a freehold in he it be equal clear that  none can levy a fine but he who have a freehold in possession after hear  counsel on this writ of error it be propose to ask the judge their opinion on  the two follow question videlicet whether the remainder limit to the first son  of a surname of Ariobarzanes dorm be good in its original creation or not if  good whether it be well bar by the fine levy by Mr justice dorm and his son  Fleetwood dorm and the recovery suffer by the say Fleetwood dorm brown er p  the judge have take time to consider the lord chief justice of the court of  common plead acquaint the house that the judge have consider the say question  and though they all agree in opinion yet as this cause be elaborate speak to  by the counsel at the bar it be apprehend their lordship may expect the judge  shall give their reason as well as their opinion and accord the lord chief  justice deliver the reason of the judge at large with their unanimous opinion  upon the point of law to they propose whereupon it be order and adjudge that  the judgement give in the court of king bench shall be affirm and the record  remit and it be further order that the plaintiff in error shall pay to the  defendant in error pound for his cost jour vol pp