case lord Charles spencer and other appellant george duke OF marlborough and  other respondent that febuary that February Mews dig ten see Eden I S by will  devise his real estate to trustee in trust for several person for life with  remainder to their first and other son in tail male successive but direct his  trustee upon the birth of every son of each tenant for life to revoke the use  before limit to their respective son in tail male and to limit the premise to  such son for their life with immediate remainder to the respective son of such  son in tail male hold that this clause of revocation and resettlement as tend  to a perpetuity and repugnant to the estate limit be void and of no effect  John duke of Marlborough in consideration of his great and eminent service be  by letter patent date the that of December in the saint year of the reign of  queen Ann create by her majesty marquis of Blandford and duke of Marlborough  to he and the heir male of his body his grace have be previous create baron  Churchill of Sandridge and earl of Marlborough to he and the heir male of his  body by other letter patent date the d of December in the same year her  majesty as a further mark of her royal favour and satisfaction for his service  and for the better support of his dignity grant he a yearly pension of pound  Payable out of the revenue of the post office during her majesty life and by  further letter patent date the that of may in the that year of her majesty  reign the honour manor and park of Woodstock and the house since erect there  call Blenheim house and brown other land and hereditament be also grant by her  majesty to the duke and his heir in pursuance of a previous act of parliament  to authorize such grant in order to perpetuate the memory of service thus  distinguish and reward a act of parliament pass in the that year of her  majesty reign entitle a act for the settle of the honour and dignity of John  duke of Marlborough upon his posterity and annex the honour and manor of  Woodstock and house of Blenheim to go along with the say honour whereby it be  enact that in default of heir male of the body of his grace the say honour and  dignity shall be vest in and enjoy by the lady harriot old daughter of the  duke and wife of the respondent Francis earl Godolphin and the heir male of  her body beget and for default of such issue by Ann countess of Sunderland  second daughter of the duke and the heir male of her body and by his grace  several other daughter therein name and their issue male and female and for  default of such issue to all and every other the issue male and female lineal  descend of or from the say duke of Marlborough in such manner and for such  estate as the same be before limit to the before mention issue of the say duke  it be intend and hereby enact that the say honour shall continue remain and be  vest in all the issue of the say duke so long as any such issue male or female  shall continue and be hold and enjoy by they several and successive in manner  and form aforesaid the elder of the descendant of every elder issue to be  prefer before the young of such issue and it be further enact that the honour  manor and park of Woodstock together with Blenheim house and the premise  therewith grant shall after the death of the duke and his duchess in default  of issue male of his body be hold and enjoy by all the daughter of the duke  and the heir male of their respective body and all other successive in such  manner as the honour be before limit to go with a power of lease for year or  for any number of year determinable on one two or three life and it be enact  that neither the duke or his daughter or the heir male of their body or any  other person to who the premise shall come by virtue of the limitation  aforesaid shall have any power by fine recovery or any other act to bar any  person to who the premise be thereby limit from enjoy the same accord to the  limitation before mention in the same year a further act be also pass for  settle upon the duke and his posterity a pension of pound per and for the more  honourable support of their dignity in like manner as his honour and dignity  and the honour and manor of Woodstock and the house of Blenheim be already  limit and settle by which brown er p a new annuity or pension of pound be  grant out of the post office in lieu of the former annuity Payable after the  death of the duke and duchess to the heir brown male of the body of the duke  and for default of such issue to all his daughter and their heir male and to  all other successive in such manner as the honour be by the precede act limit  to go with a like restriction as in the precede act prohibitory of and vacate  any act to be do for bar the person to who the annuity be thereby appoint to  come in contemplation of these several act and with a view of communicate to a  large share of his own private property the same unalienable quality which the  legislature have think fit to annex to the royal and public bounty and in  order to perpetuate the same his grace execute a instrument or deed of  covenant with the duke of Montagu and other trustee date the that of November  by which in consideration of natural love and affection to his daughter and  for the better support of his honour and dignity he covenant to assign and pay  to the trustee ready money or security to the amount of pound in trust to be  dispose of in purchase land and hereditament to be convey to the use of his  grace and the heir male of his body with remainder to other trustee for a term  of year for raise the several annuity therein mention with several remainder  to his several daughter and their issue male and female and to all other  person male or female that shall lineal descend from his body and to their  issue male and female in such manner and for such estate as be therein mention  his intention be declare therein that the land to be purchase shall continue  and remain to all the issue of his body as long as any such shall be so long  as by law it may be to go along with his honour and dukedom of Marlborough and  for want of such issue to his right heir with other direction touch the limit  the say estate and provision for his son in law with power to the respective  tenant for life or in tail male to be make pursuant to the say deed for lease  the land and estate so to be purchase with power for the say trustee to revoke  the use in tail male to be limit to person not in be when they shall be  respective bear and in lieu thereof to limit the same to they respective for  their life without impeachment of waste with remainder to their several son in  tail male successive and the trustee be thereby direct to apply in seven year  after his decease for a act of parliament confirm the say settlement and make  the settle and to be settle premise unalienable and thereby all other his  purchase either in his own name or in the name of his trustee be direct to be  to the same use and subject to the same power as the land to be purchase with  the money and other personal estate in the say indenture mention be thereby  direct to be but this instrument be make subject to revocation by deed or will  on the that of march the duke make his will whereby after recite the precede  trust deed of the that of November brown together with a subsequent will and  several codicil by he make and that since the deed several purchase have be  make by the trustee which have be convey to they to the use in that deed and  that other part of the trust money have be place out upon security he  therefore by his will revoke the say deed and the subsequent will and codicil  and to the intent that there may be one entire settlement and disposition or  direction for a settlement and disposition of his whole estate real and  personal and for the natural love and affection which he bear to Sarah duchess  of Marlborough his wife and to his child and grandchild and for continue his  estate or the great part thereof in manner therein after mention in the  descendant from he so long as the same may be by law he give and devise all  his lordship manor message land tenement and hereditament situate in the  several county of Northampton Oxford wilts and Hertford or elsewhere in  England not settle by act of parliament as well those purchase by or in the  name of his trustee as all other to which he be entitle in law or equity  except his mortgage or real security for money unto the say Sarah duchess of  Marlborough John duke of Montagu and Scroop duke of Bridgewater the respondent  Francis earl Godolphin William Clayton Esq afterward Lord sundon and William  Guidott and John Hanbury esqr their heir and assign to the several use upon  the several trust and for the intent and purpose after mention videlicet as to  all his say estate except certain estate in Hertfordshire late of Richard  Jenyns Esq decease which he give to the duchess for life with a discretionary  power of appointment to her child or grandchild subject to the payment of  brown er p several annuity since determine to the use of harriot then countess  Godolphin afterward duchess of Marlborough wife of the respondent earl  Godolphin for life sans waste remainder to the duke of Montagu and Bridgewater  and their heir in trust to preserve the contingent remainder and after her  decease in case the respondent earl Godolphin shall survive her and shall not  be entitle as tenant by the courtesy to the pension of pound per and settle by  the act of the that of queen Ann on the testator posterity and to which the  earl do not become entitle then to the intent that the say respondent during  his life shall receive thereout a annuity of pound free from tax and after the  decease of harriot countess Godolphin subject to such annuity to the use of  William Godolphin Esq call Lord ryalton son and heir apparent of the say earl  and countess for life sans waste remainder to the same trustee to preserve the  contingent remainder remainder to the first and other son of Lord ryalton in  tail male remainder to all other the son and son of harriot countess Godolphin  successive in tail male remainder to Robert Spencer Esq call Lord Robert  Spencer old son of Ann late countess of Sunderland the testator second  daughter for life sans waste remainder to trustee to preserve the contingent  remainder with brown remainder to his first and other son in tail male but  which use never vest as he die in the lifetime of the countess Godolphin  without issue remainder to Charles Spencer afterward earl of Sunderland and  since duke of Marlborough second son of the say Ann countess of Sunderland and  father of the appellant Lord Charles and Lord Robert Spencer and of the  respondent George duke of Marlborough for his life without impeachment of  waste remainder to trustee to preserve the contingent remainder remainder to  the first and other son of the say Charles Spencer in tail male but to this  last limitation as well as the precede one to Lord Robert Spencer a condition  be annex that if the testator shall die without issue male and the countess  Godolphin and Lord ryalton and Lord Robert Spencer shall also die without  issue male whereby the say Charles Spencer or in case of his death one of his  son shall be seize of the premise in possession that if the say Charles  Spencer or such of his son who shall be first seize in possession of the  premise be of full age shall not within six month convey to the use of John  Spencer three son of the say Ann countess of Sunderland and father of the  appellant John Lord viscount Spencer and the heir male of his body if then  live Charles earl of Sunderland be then dead and if not then within three  month after his decease all the manor land and hereditament settle upon the  son of the say Charles earl of Sunderland and Ann countess of Sunderland  decease successive in remainder in tail male upon their marriage by a  indenture date the that of October that then the use limit to the say Charles  Spencer and the trustee for his life and to his son in tail male shall  determine and be void and for default of such issue male of the say Charles  Spencer or upon the determination of the precedent estate by virtue of the  proviso before mention which of they shall first happen to the use of the say  John Spencer for life sans waste remainder to trustee to preserve contingent  remainder remainder to his first and other son in tail with several remainder  over to the testator other child and grandchild therein name and then follow  this clause and for default of such issue to all and every other the issue  male and female lineal descend of or from I in such manner and for such estate  as the same be herein before declare and limit to the beforementioned issue of  I it be my intention that the say premise shall continue remain and be vest in  all issue of I so long as any issue male or female shall be to be hold or  enjoy by they several and successive in manner and form aforesaid the elder  and the descendant of every such elder issue to be prefer before the young of  such issue as long as by the law of the realm it may be and for want of such  issue to the use of the testator right heir for ever brown and in the say will  be contain the follow clause videlicet and I do hereby empower and direct my  trustee the say Sarah duchess of Marlborough John duke of Montagu Scroop duke  of Bridgewater Francis earl Godolphin William Clayton William Guidott and John  Hanbury and the survivor and survivor of they and the heir and assign of such  survivor on the birth of each and every son hereafter to be bear of the say  Lord ryalton and also of the say brown er p harriot countess Godolphin and  also of the say Lord Spencer Charles Spencer and John Spencer and also of the  say mary duchess of Montagu and also of the say harriot duchess of Newcastle  and also of the say John Bateman and also of the say lady Ann Bateman and also  of the say lady Diana Spencer and also of the say lady Ann Egerton and also of  the say lady Isabel Montagu and also of the say lady mary Montagu by deed  attest by two or more credible witness to revoke and make void the respective  use limit to their respective son in tail male and in lieu thereof to limit  the premise except before except to the use of such son for their life without  impeachment of waste with immediate remainder to the respective son of such  son several and respective in tail male accord to the seniority of the say son  the testator then give to the duchess his wife during her life the use and  occupation of all his picture glass hang and bed and all other the household  good and furniture which shall be in Blenheim house at the time of his decease  and of his gold plate with the elector of Hanover arm engrave thereon and  after her decease be give the use and occupation thereof to the countess  Godolphin for her life and after her decease to Lord ryalton for his life and  it be his desire as he thereby declare that the same may always be enjoy with  Blenheim house by the owner thereof be duke or duchess of Marlborough accord  to the settlement of the say house by act of parliament he annex the glass and  marble fix in the say house to the same and declare they to be take as part of  and enjoy therewith and all other the say good and furniture so far as by law  the same may be annex thereto and after the death of Lord ryalton he give the  say household good and furniture to William Clayton William Guidott and John  Hanbury their executor administrator and assign in trust for the first and  other son of the body of Lord ryalton and the heir male of their body and for  the several other son to be beget of the say harriot countess Godolphin and  the heir male of their several body and for the say Lord Robert Spencer and  the son of his body to be beget and the heir male of their body and for the  say Charles Spencer for his life and for the several son of his body to be  beget and the heir male of their several body and for the say mary duchess of  Montagu for her life and for the several son of her brown body lawful to be  beget and for the heir male of their several body and for the several other  person and the heir male of their several body several and successive in such  order manner and form and for such interest as be give devise or limit to or  for they respective in the land and hereditament not settle by act of  parliament before devise to the countess Godolphin for her life the testator  declare his intent to be that the say household good and furniture shall at  all time thereafter remain and be in the say house and therein use and enjoy  by the person or person who shall from time to time be entitle to the same the  countess and all person therein name who be by virtue of the trust to have the  use of the say good for life enter into recognizance before take possession of  the say house and good in the penalty of pound with condition to preserve and  leave the same at their respective deceases in as good condition as the same  shall be at the take possession thereof reasonable use wear and inevitable  accident by fire or otherwise except then follow this clause videlicet and I  do hereby declare and direct that upon the birth of each son of the say Lord  ryalton and each other son of the say harriot countess Godolphin and each son  of the say Robert Spencer Charles Spencer and John Spencer and of mary duchess  of Montagu and of such other person as aforesaid they the say William Clayton  William Guidott and John Hanbury and the survivor and survivor of they and the  executor and administrator of such survivor do and shall revoke the trust of  the say household good and furniture herein before limit for such son or  person and for the heir male of his or her body and in lieu and stead thereof  to limit the say trust to be for his or her life only and afterward for the  first and every other son of his or her body in tail male and he bequeathe the  use of the diamond sword give he by the emperor and of his George and collar  use by he as a knight of the garter to Lord ryalton for life and after his  decease to Clayton Guidott and Hanbury their executor administrator and assign  upon trust for such person and person and for such time and in such manner as  he have before give the say household good and furniture that brown er p shall  be at his decease in Blenheim house the same trust to be revocable and to be  revoke in such manner as the trust before limit of the say household good and  furniture at Blenheim house be make revocable and direct to be revoke and  after give other annuity and several pecuniary legacy the testator bequeathe  all the residue of his personal estate not before dispose of his debt and  funeral charge be first pay to his say trustee in trust to lie out the same  entire or by part in the purchase manor land and hereditament in feesimple in  England with the approbation of his wife the countess Godolphin and Lord  ryalton brown or of the survivor or survivor and after the decease of the  survivor at the discretion of the trustee with the approbation of the duke or  duchess of Marlborough for the time be to be settle and secure to the several  use trust intent and purpose and by and under all and every the limitation  power of revocation other power condition restriction and agreement therein  before limit direct and appoint of and concern his real estate before devise  to his say trustee to the use of the countess Godolphin for life with  remainder over subject to and charge with the annuity legacy and appointment  therein mention after the precede limitation and restriction the testator  proceed with the follow clause videlicet and I do hereby entreat his most  sacred majesty the lord spiritual and temporal and Commons in parliament  assemble or to be assemble that a act of parliament may he have and obtain for  settle my real estate herein before devise or to be purchase with my personal  estate in pursuance of this my will and also my good which shall be in  Blenheim house and Marlborough house at the time of my decease to such use and  accord to my intention express herein and that the same be unalienable as the  honour and manor of Woodstock and house of Blenheim be make by the say recite  act of parliament of the that year of her say late majesty and I do hereby  direct my say trustee and the survivor and survivor of they and the executor  and administrator of such survivor in humble manner to apply for obtain such  act of parliament for the purpose aforesaid he then appoint his duchess and  the duke of Montagu and Bridgewater and the respondent the earl Godolphin  together with Clayton Guidott and Hanbury his executor on the that of June the  testator die without have any daughter bear after his will and without issue  male and all the executor prove the will except the duke of Montagu and  Bridgewater harriot countess of Godolphin Lord ryalton and Lord Robert Spencer  name in the will all die without issue male and on the decease of the countess  then duchess of Marlborough who survive her son and Lord Spencer of the that  of October Charles Spencer name in the will father of the respondent the duke  of Marlborough become seize for life of the estate limit by the will and  purchase with part of the personal estate and entitle to the yearly produce of  the residuary personal estate not invest in purchase and in compliance with  the condition in the will he by lease and release date the that and that of  January and by fine convey all the estate which by the indenture of the that  of October be settle upon the son of the say Charles earl of Sunderland by Ann  countess of Sunderland his wife successive in remainder in tail brown male to  the use of his brother John Spencer and the heir male of his body several sum  of money part of the testator personal estate be after his death lie out by  his trustee in the purchase of estate in the several county of wilts Oxford  Bedford buck and Lincoln and elsewhere of a great yearly value which as they  be purchase be convey to the trustee and their heir upon the trust in the will  general in Trinity term a bill be exhibit in the court of chancery in the name  of Sarah duchess of Marlborough the respondent Francis earl Godolphin and  William Clayton then Lord sundon the then survive act executor and trustee  against Charles then duke of Marlborough and his son George then marquis of  Blandford and also against the say John Spencer father of the appellant Lord  viscount Spencer and against his lordship and other pray that such of the  trust of the will as have be perform and such purchase as have be make with  the trust estate may be approve and that such of the trust as remain  unperformed may be carry into execution under the direction of the court and  that all proper account may be take brown er p of the testator estate and the  rend and profit thereof and of the application thereof and that so much of the  testator residuary personal estate as have not be lie out may be invest in  purchase with the approbation of the court and that the several estate to be  purchase may be convey and settle under the direction of the court the cause  be hear on the that of June before the Lord chancellor Hardwicke when it be  refer to a master to take the several account of the testator estate real and  personal and to inquire into the purchase make by the executor and trustee  with the residuary personal estate and direction be also give for invest the  remainder of the testator personal estate in the like purchase accord to his  will with the master approbation and also for inventory to be make of the  testator good and furniture in Blenheim house and that the duchess shall enjoy  the same during her life with liberty after her death for the person interest  to apply to the court concern the same and the diamond sword and the George  and collar be also order to be deliver to Charles then duke of Marlborough on  his enter into a recognizance for the redelivery thereof after his death to  the person entitle to the same and a question have arise touch the power give  by the testator will to the trustee to revoke the use thereby limit to the  first and every other son of the respective tenant for life of the estate  therein mention on their respective birth and to limit the premise to the use  of such son for their life only and whether in consequence thereof the  respondent the now duke of Marlborough and the appellant John Lord viscount  Spencer both at that time infant be entitle to limitation in tail or for life  only in the settlement to be make of the brown say estate the consideration in  what manner the settlement of the say estate may be make be reserve until the  determination of that question the several estate at that time purchase by the  trustee have be approve by the master the say Charles duke of Marlborough be  soon after put into possession thereof and the diamond sword the collar and  George and the good and furniture at Blenheim house be likewise deliver to he  after the death of Sarah duchess of Marlborough his grace have previous to the  several delivery enter into the recognizance require by the decree all the  executor and trustee except the respondent earl Godolphin be dead the  respondent John duke of Bedford and Charles Lord viscount fane together with  dr James Stephens since decease be appoint trustee of the testator real and  personal estate joint with the respondent earl Godolphin pursuant to different  order of the court and the trust estate be convey and assign to they accord on  the that of November Charles duke of Marlborough die leave the respondent  George duke of Marlborough his old son and the appellant Lord Charles and Lord  Robert Spencer his young son all infant in Hilary term a new bill be exhibit  in the name of the respondent the duke of Marlborough against the other  respondent the duke of Bedford earl Godolphin Lord fane and dr Stephens the  then trustee against the respondent Joseph Fyson the administrator of Lord  sundon who survive Guidott and Hanbury and also against all the appellant  insist that the respondent the duke who be not bear till after the will and  death of the testator do upon his birth as be old son of Charles the last duke  of Marlborough in the will call Charles Spencer become entitle to a remainder  in tail male in all the real estate of which the testator die seize and to a  remainder in tail male in equity in all the real estate which after his death  be purchase with his personal estate and that the trustee ought to convey the  same to he as tenant in tail male with remainder over to such of the use limit  by the will as be then subsist without insert in such conveyance any power to  the trustee to revoke the estate tail to be so limit to he or any of the use  or estate to be limit or declare by such new conveyance for that the legal and  equitable estate in tail male be so vest in he can not by the rule of law or  equity be divest or alter by any act deed or conveyance to be make or execute  by the trustee under colour of the power contain in the will or otherwise and  charge that the testator intention to make his estate unalienable be contrary  to the rule of law and equity and void as tend to establish a perpetuity and  that such attempt shall it take effect will disable the respondent the duke  from make brown er p any proper provision for his young child or for the  payment of any debt he may contract brown and further charge that be entitle  to such legal and equitable estate tail in the real estate he be also entitle  to have the leasehold estate purchase with the trust money absolute assign to  he without any limitation over such leasehold estate be in their nature  chattel interest and incapable of be entail or settle in so strict a manner as  land of inheritance may be and that he be further entitle to the good in  Blenheim house and diamond sword and George and collar such specific thing be  in their nature chattel personal only and incapable of limitation over and  therefore the bill pray a full execution of the trust of the testator will so  far as the same can be by law and that the trustee may be decree to convey and  settle all the freehold and leasehold estate desire by the testator or since  purchase with his residuary personal estate accord to the true and legal  import and construction of his will and so as that the respondent the duke may  be render tenant in tail male of the say freehold estate and that the  leaseholds may be absolute vest in he without any power of revocation or other  condition to defeat the estate to be to he limit and that the remain personal  estate may be immediate invest and settle in like manner and that the good at  Blenheim house and the other specific thing may be also deliver to he as his  own property without security or condition the appellant Lord Charles and Lord  Robert Spencer be both infant put in their answer by their guardian and submit  whether the trustee ought not in pursuance of the power and direction contain  in the will to revoke the several use thereby limit of the estate of which the  testator die seize and to settle the same together with the several real  estate purchase and to be purchase in such manner as that the duke their elder  brother shall be make tenant for life only with remainder to the use of  trustee and their heir during his life to preserve the contingent remainder  and after his decease to the first and other son of his body in tail male with  like remainder to the appellant one after the other and after their death to  their first and other son in tail male successive and in default of such issue  to such of the use direct to be limit by the say will as be capable of take  effect and whether the trustee ought not to be direct upon the birth of any  other son of the body of any of the person to who a estate for life be limit  by the will to revoke all the use and estate that shall be then in be and to  make new settlement as often as any such other son shall be bear and whether  in every settlement to be execute by the trustee there ought not to be contain  the same power and direction to the trustee for the time be to revoke the use  and estate that shall be then exist and to settle the same in the manner  direct by the will and they further submit whether the respondent the duke be  not likewise by virtue of the will and accord to the intent thereof to be  consider as entitle only to the use during his life of the good and furniture  in brown Blenheim house and of the gold plate diamond sword George and collar  and whether the same ought not to be settle and assign accord with such power  of revocation and resettlement as in the will mention or in what other manner  the say estate real and personal and specific thing ought to be enjoy and  settle and be infant they submit their interest in the testator estate real  and personal to the care of the court the appellant Lord viscount Spencer and  George Spencer his infant son by their answer also insist that the respondent  the duke ought not to be consider as tenant in tail male but that the trustee  ought to execute the power of revocation and resettlement vest in they by the  will the respondent the duke of Bedford earl Godolphin and Lord fane by their  answer pray the direction of the court in respect to their execute or not  execute the power give to they by the will and submit to act in their trust as  the court shall direct this last clause together with the question reserve by  the former decretal order come on to be hear before the Lord chancellor  Northington on the that of November when his lordship declare that the clause  of revocation and resettlement in the will as tend to a perpetuity and  repugnant to the estate limit be void and of no effect and decree that the  survive trustee and new add trustee shall with the master approbation convey  all the land or hereditament whereof they or any of brown er p they before the  death of the say John duke of Marlborough be seize in trust for he and also  such as since his decease have be or shall be purchase with the master  approbation pursuant to the direction of the former decree to the respondent  the duke of Marlborough in tail male with remainder over and subject to such  power proviso condition and restriction as be consistent with a estate tail  pursuant to the testator will and as to the furniture picture hang bed and all  other the household good in Blenheim house and the gold plate with the elector  of Hanover arm engrave thereon and the diamond sword and George and collar his  lordship declare he be of opinion that the same be become the absolute  property of the respondent the duke and order that he shall be at liberty to  apply to have the same deliver to he when he shall attain in obedience to this  decree the respondent the duke of Bedford earl Godolphin and Lord fane with  the master approbation by lease and release of the that and that of January  settle and convey all the estate which have be purchase with the residuary  personal estate and be then vest in they subject to the annuity of pound per  and to the respondent earl Godolphin for his life to the respondent the duke  and the heir male of his body with remainder over but some part of the trust  estate which be limit in jointure to the brown marchioness of Blandford not be  comprehend in the general settlement they be afterward convey by the trustee  with her ladyship concurrence by a further settlement of the that and that of  may in like manner to the use of the respondent the duke and the heir male of  his body with remainder over in further pursuance of the decree the trustee  proceed to invest the testator remain personal estate in purchase and the  whole thereof have be realize the estate purchase therewith be by different  settlement in the same year as the respective purchase be make also settle and  convey with the master approbation to the use of the respondent the duke and  the heir male of his body with remainder over and in order that he may be  capable of make proper provision for young child when he shall marry he  proceed to suffer recovery of all the settle estate and declare the use  thereof to himself in fee but notwithstanding these proceed the appellant  think proper to appeal from the decree and on their behalf it be argue t jewel  W de grey that the same policy of the law which will not permit estate to be  fix unalienable in one family for ever will support and protect the mean of  preserve they till they come to that point at which the mischief of a  perpetual restraint may commence the one be as necessary a incitement to  industry and as useful as the other this point however be difficult to fix it  have not yet be fix by any legislative or judicial act or authority it have  indeed be determine that estate may be make unalienable for the duration of  any number of life in be and for year beyond and in some instance still far  but no judicial determination have say what be the precise bind which shall in  no instance nor by any mean be exceed the particular mode of the conveyance  though it may be new or accord to the expression in the law book of the  tendency of a limitation to a perpetuity be not sufficient to render such  conveyance or limitation void the interposition of trustee to support  contingent remainder be a invention introduce about a century ago a invention  which tend great to suspend and restrain the power of alienation and yet it be  now become the establish mode of settlement every limitation of estate and  every restraint of alienation have a proportionable tendency in some sense to  a perpetuity that if the mean make use of in this will to make part of the  duke of Marlborough estate accompany the honour and estate fix in his grace  family for one succession beyond the common limitation be regular and accord  to the course of law they seem to introduce no danger of a perpetuity since  the restraint will not go beyond the son of the several noble person name in  the will and the immediate descendant of such son will be tenant in tail and  have a power of alienation that if the trustee have execute this power upon  the birth of the appellant and the respondent the duke it brown be apprehend  that a court of equity will not have interpose to impeach it and if after a  execution of the power the limitation be to person in be though for life only  will have be support the neglect of the trustee ought not in equity to  prejudice the infant cestuique trust but it be a power which the trustee be  enjoin to execute the court shall consider it as execute from the brown er p  respective time when it ought to have be execute that be from the birth of the  several son of the respective nominees on behalf of the respondent the duke of  Marlborough it be contend c York g Perrot e will that in the ordinary course  of family settlement nothing less than a estate tail be limit to person not in  be it have be hitherto understand to be the only method of carry on successive  remainder of inheritance by way of strict settlement in the family of  successive tenant for life consistent with the rule of law for if the grantor  shall after the first vest estate of freehold limit a contingent estate or use  for life to a person unborn and then follow it with contingent remainder in  tail to the son or child of such unborn tenant for life such contingent  limitation of the inheritance will be void this arise from the policy of the  law against perpetuity that the vest of the inheritance or ownership may not  be suspend beyond the compass of a life or life in be or beyond the age of of  the first unborn tenant in tail during who infancy the law itself will  restrain his power of alienation that whoever have a vest estate of  inheritance in land be the absolute owner whether he be tenant in feesimple or  tenant in tail it be equal contrary to the rule of law to prohibit either from  exercise the power of alienation incident to his estate condition to restrain  these power general be void as be repugnant to the estate limit and it be  admit that by the direct legal limitation in a deed or devise in a will the  grantor or testator can limit a estate tail to a person unborn and the heir of  his body and immediate upon the event of his birth direct it to cease as to  such tenant in tail and continue as to his issue if the law be undoubted  equity must follow it that the same substantial rule of property may be  observe by both jurisdiction and as the law will not allow the testator by  direct limitation to turn a contingent remainder man in tail into a tenant for  life at the very instant of time when the estate tail will vest with its  incident right of alienation so neither will equity allow he by way of power  of revocation or rather by way of imperative trust to enable trustee as his  instrument to convert the tenant in tail after his birth into a tenant for  life which change the author of the trust himself can not effectuate by any  proper legal limitation original insert in his will quodcumque to hold before  become ex straight to hold before et per sidelong that if the power give to  the trustee to revoke the use upon the birth of the respondent be allow to be  good it will have be equal so have it extend to all future generation and make  the brown estate for ever unalienable which will be hardly contend the  testator most clear intend a perpetuity and open avow his design with this  view he keep the different act of parliament constant before he both in his  will and deed of adopt the same form of expression with the salvo of as far as  may be by law and be still conscious that the ingenuity of his lawyer however  skilful can not keep pace with the legislative authority he request the  sanction of parliament to the settlement of his estate pursuant to his will  and accord to his intention express therein so that the same may be  unalienable as the honour and manor of Woodstock last that the gold plate  etcetera be chattel become absolute vest in the respondent upon his birth  subject to the late duke be interest in they for life and if the respondent  have live but one hour after he be bear they will have go to his father as his  administrator the decree therefore order they to be assign and deliver to the  respondent be just and right after hear counsel on this appeal the judge be  order to deliver their opinion to the house upon the follow question videlicet  whether by the rule of law a estate tail limit to the use of person unborn by  any deed or will can by virtue of any power give by such deed or will to  trustee be revoke upon the birth of such person and a new estate limit to such  person for their life respective with remainder to the issue of such person  successive in tail male and the Lord chief justice of the common plea have  deliver the unanimous opinion of the judge in the negative it be thereupon  order and adjudge that the appeal shall be dismiss and the decree therein  complain of affirm jour vol p brown er p