case smith on the demise of dorm against Parkhouse and other SC atk in a  ejectment a special verdict be find that John dorm on the marriage of his son  sir John dorm settle the premise in question of which he be seize in fee on  sir John his old son for ninetynine year if he shall so long live remainder to  his wife as to part for her life remainder to trustee to support contingent  remainder remainder to the first and other son in tail male remainder to  trustee to raise portion for daughter remainder to John dorm for life and from  and after his decease remainder to the use of Robert dorm the judge second son  of John dorm and his assign for and during the term of ninetynine year if he  so long live and from and after the death of the say Robert dorm or other soon  determination of that estate then to and for the use of trustee and their heir  for and during the natural life of the say Robert dorm to preserve contingent  remainder and after modern the end or other soon determination of the say term  remainder to the first and other son of Robert in tailmale remainder to  Fleetwood dorm three son of John in the same manner remainder to John dorm in  tail male remainder to his brother in the same manner remainder to  a surname of Ariobarzanes dorm his nephew under who the present plaintiff  claim as his son and heir male for ninetynine year if he shall so long live  remainder to trustee to support contingent remainder remainder to his first  and other son in tail male remainder to John dorm the settlor his heir and  assign for ever they find that Robert dorm upon the death of his brother sir  John dorm without issue and the determination of the other precedent remainder  become possess of the premise in question for ninetynine year if he shall so  long live remainder as above limit that the say Robert dorm have a son  Fleetwood dorm and no other issue male that in easter term in the twelve year  of George the first the say Robert dorm and his son Fleetwood levy a fine and  suffer a recovery of these premise that Fleetwood die without issue in the  lifetime of Robert and that Robert dorm afterward die without issue male leave  four daughter mary Elizabeth the wife of sir John fortescue aland Ricarda wife  of the defendant Parkhouse and Catherine who be now the defendant they find  the several entry of the defendant and that a surname of Ariobarzanes dorm  leave issue male the present lessor of the plaintiff who likewise enter upon  the defendant and make the demise to the plaintiff smith this case be twice  argue at the bar by Dennison and Chute for the plaintiff and by hollings and  Filmer for the defendant the general question be whether the recovery suffer  by Robert dorm the judge and his son Fleetwood be a good bar of the estatetail  and this depend on the three follow question which be dependent on each other  first whether by the fine levy in easter term in the twelve year of George the  first by Robert dorm and Fleetwood sufficient pass to make a good tenant to  the prcipe modern er p second whether the freehold at the time of the fine and  recovery suffer be in Robert or Fleetwood or whether it be in the trustee  three whether the estate limit to Robert for ninetynine year remainder to the  trustee as above be a contingent or vest estate in the trustee the plaintiff  claim as heir male of the last remainderman under the settlement of John dorm  on the marriage of sir John his son and he contend that as Robert under who  the defendant claim be only a tenant for year he can not even with his son  join with he make a good tenant to the praecipe and modern that the fine levy  by he in easter term in the twelve year of George the first be a forfeiture of  his estate which immediate vest in the trustee in possession so that the  freehold be in the trustee and they not party to the recovery it will be no  bar to the lessor of the plaintiff who be the remainderman in tail male under  this settlement the defendant say that the trustee have only a right of entry  which be contingent and not a vest estate for Robert may outlive the  ninetynine year and have a son live and then the trustee can not have take at  all for there will have be a person in be to have take that the limitation of  this estate be repugnant and uncertain and therefore void it be first limit to  the trustee after the death of Robert for Robert life and then after the end  or other soon determination to the first and other son c that the fine levy by  Robert and Fleetwood be not void but voidable only and therefore will be good  till avoid to make a good tenant to the praecipe the plaintiff reply that  though the fine be uncertain when the estate will vest in the trustee in  possession yet it vest in point of interest immediate reddendo one one accord  to Leon Loveys case Rep b else how can it support another estate that be  contingent unless itself vest somehow for one contingency can support another  that upon Robert levy the fine he commit a forfeiture and then the estate vest  immediate in the trustee in possession which before vest only in interest and  that the word other soon determination mean soon than the natural death of  Robert dorm which may be by surrender forfeiture or effluxion of time that  marriagesettlement be construe as favourable as will and therefore the law in  support of the intention of the party will help any uncertain word or mistake  as the fault clergyman and not make it void for little uncertainty or mistake  that the estate be not to be leave to the mercy of the trustee whether they  will enter or not therefore upon Robert commit the forfeiture by levy the fine  the law will suppose they immediate enter as they ought this term the chief  justice deliver the opinion of the court lee chief justice upon this special  verdict the question be first whether the common recovery in which Fleetwood  the son be vouch be a good bar of this estatetail and that depend on this  point second whether there be a good tenant to the praecipe the tenant be make  by Robert the judge who be a lessee for ninetynine year if he so long live and  by Fleetwood the son to who the remainder be limit in tail and though Robert  be but a tenant for year yet it be say first that by this fine a freehold pass  for that it be not void but at most only voidable modern second that if the  fine levy by Robert be not alone sufficient to pass any freehold yet by the  son join with his father they both make a good tenant to the praecipe  notwithstanding the estate limit to the trustee to support contingent  remainder which it be say be either void in its creation or at least  contingent only and never vest and that this limitation pass no estate to the  trustee only give they a right of entry to the purpose of the trust first as  to the fine levy by Robert no case have be cite to prove it effectual and the  law be now clear and settle that a fine levy by tenant for year by reason of  the inability of his estate nothing operator for be in the realty it be  necessary that the person who suffer it shall have a freehold so be Saffyns  case   a   modern er p Fermors case hard and so be it hold in the case of hunt  v bourn in salk which I cite from a manuscript of Lord holt where he say that  if tenant for year make a feoff in fee this divest the whole estate of he in  reversion but if he levy a fine nil service by which it be plain he mean no  freehold passes because be put a fine in opposition to a feoff which divest  the estate but a fine do not and it may be allege quod part Finis nil to have  that a fine be improper call a feoff on record and have only the effect of a  feoff to some purpose if be who levy the fine be seize of the freehold at the  time of the fine levy and of that opinion be Lord Macclesfield in the case of  carter v Barnardiston Peer win b take it then that this fine have no effect to  pass a freehold I will now consider what effect fleetwood join with his father  in the fine and recovery will have and as to that it be certain if there be  any freehold in Fleetwood the recovery will be a good bar but we be all of  opinion that the freehold be not in Fleetwood and that the remainder to the  trustee to preserve the contingent use be not void nor contingent but a vest  estate and that it can be construe as give only a right of entry as have be  insist at the bar in   light a there be this description give of a remainder  that it be a remainder or remnant of a estate in land or tenement expectant  upon a particular estate create together with the same and it be so expectant  upon the particular estate that either it must take effect the instant in  which the particular estate determine or else it be void the reason give at  the bar to prove this a void remainder be that it be limit to the trustee to  commence after Robert death and then afterward to hold during his life which  it be say be repugnant be there no other word to explain those there may be  some force in the objection but the word be and from and modern after the  death of the say Robert dorm or other soon determination of his estate then to  the trustee c which word or other soon determination answer the objection and  must mean by surrender forfeiture or effluxion of time which may happen soon  than the death of Robert and so here be word to make this a reasonable  limitation and possible to take effect but in answer to this it be insist that  where a remainder be limit to take effect on two disjunctives which can stand  together one of they be impossible as in this case a limitation upon Robert  death to hold during his life there the court will not reject the impossible  disjunctive but construe the whole limitation void and to prove this be cite  the case of Comberford v birche lev where a settlement be make with a proviso  that if none of the brother of the grantor or their child be live at such a  time then be give the estate to his brother successive and the court hold it  to be a void limitation but I think that case do not come up to the present  for the court do not determine upon the absurdity or impossibility of both the  disjunctives take place it be limit to his brother after all his brother death  but the ground of their opinion be that the death of the brother child be a  condition precedent and therefore while they be live the remainder to the  brother can not take effect now here the death of Robert can never be intend  as the only condition upon which the remainder to the trustee shall take  effect but only as a soon determination as be afterward express second in the  next place it be say that suppose the remainder be not void in its creation  and that it be possible to take effect at first yet it be contingent and be  now become void by event for it be uncertain not only as to the time when the  determination may happen but likewise whether it may ever happen for Robert  may have be presume to have outlive the term but I think this be a mistake and  that there be no warrant for such a position by any rule of law contingent  remainder be of three sort first when it be a limitation to one not in be for  in that case if the remainderman never come in be it be a void remainder  second when the particular estate may determine before the remainder can  modern er p commence as to a for life remainder to b to commence upon the  death of c the remainder to b be go three when there be a condition precedent  or something to happen before the remainder can take effect which may never  happen at all as a remainder to commence when I S shall return from England to  Rome now the present remainder can be say to be contingent within any of these  three description for first here be person in be to take second the remainder  do not depend on the modern death of Robert for it be limit from any soon  determination of the estate so that immediate upon the expiration of the  particular estate the remainder be to commence three nor be here any precedent  condition to be perform in order to give the trustee a title in our case the  remainder depend on such fact which must determine the particular estate from  the nature of the estate itself and which be understand so to be when the  remainder be original create for all estate for year determinable on the  lessee life may determine not only by the death of the party or effluxion of  time but also by surrender or forfeiture and such the law take notice of and  will expect as appear by   Cholmley case and sand as a lease for life to a  remainder to another during the life of a this be good only by possibility  that the remainder may take effect by the tenant for life alien or commit a  forfeiture and this therefore be consider as a interest in the grantor which  he may limit and as that sort of estate which trustee have for support  contingent use and be not a mere right of entry nor a contingent remainder but  a vest estate to take effect by those way and method of determination to which  the particular estate be subject when it be create and for this   light a put  a case which explain this matter exact if tenant for life say be make a lease  by deed or without deed to he in the remainder or reversion in tail or in fee  for the life of he in the remainder or reversion and afterward he in the  remainder or reversion take a wife and die his wife shall not be endow but the  particular tenant shall enjoy the land again for it can be a forfeiture he in  the remainder be party to the alienation and it can be a surrender because his  whole estate be not depart with so here the possibility of the lessee die in  the lessors lifetime or his forfeit or surrender the estate still remain in  the grantor and be what Lord coke call a freehold and put this case as a  instance where there may be several freehold derive out of the same estate and  though it be but a possibility yet it be sufficient to prevent the wife of he  in remainder from be endow agreeable to this be Duncombe case lev a a tenant  for life remainder to I S and his heir for the life of a remainder to a in  tail the court hold that the remainder to I S though but a possibility be such  a interpose estate between the estate first limit to a for life and the last  estate limit to he in tail that a can be consider as no more than a bare  tenant for life and consequent his wife can not be endow which seem to be our  very case as to this point for I take it that I S can be no other than a  trustee there for preserve the contingent use though the case be not so full  report thus much to show upon what ground limitation to trustee make in common  form must operate modern the next thing be to consider what construction the  present limitation ought to have and I think it operate in the same manner as  the common limitation do I mean that part of it which be call contingent and  take its name from the word or other soon determination the common kind of  limitation be first to a for life and from and after the determination of his  estate then to trustee for the life of a or else to a for ninetynine year if  he so long live and from and after the end of the term then to trustee during  the life of a in the first case the remainder limit to the trustee be to  commence during a s life it can take effect upon the natural death of a nor  otherwise than by a surrender or forfeiture of his estate nor in the second  instance otherwise than by effluxion of time or by surrender or forfeiture or  perhaps in both case by civil death and I think the same objection which have  be make in the present case may as well be make to every limitation for  preserve modern er p contingent remainder for though the word or other soon  determination be not always insert yet there be no trust settlement to be find  which do not import as much in Bridgman there be a like settlement without  these express word indeed but the construction upon it must be the same as if  they have be insert because the remainder be there limit to the trustee only  during the life of the tenant for year and therefore must be construe to  commence on a determination of the term before the lessee death else it can  never commence or take effect at all the meaning of these limitation be that  when a estate be give to a for life the limitor have notwithstanding a  interest remain in he to enter upon a alienation or forfeiture c which  interest when convey to the trustee be a remainder or legal estate which they  be say to have for preserve the contingent use and be so call by Lord Cowper  in vern so in the common case of marriagesettlement where a estate be limit to  the first taker either for ninetynine year or for life with a remainder to  trustee to support the contingent remainder during his life we be of opinion  that by such limitation a present freehold passes to the trustee subject to  the term of ninetynine year in such manner that it can take effect until the  determination of that term but that determination must always be in some  manner or other soon than the natural death of the particular tenant and  though this remainder may depend on the trustee come into possession or upon a  surrender or forfeiture which may or may not happen yet such fact be in law  possibility not remote and not mere contingency but vest interest and it will  be of the most dangerous consequence and may overturn most of the  familysettlements in the kingdom if a different construction be to prevail  because it will then be in the power of a beneficiary and use to bar any  settlement without the consent of the trustee we be all therefore of opinion  that this limitation do vest a freehold in the trustee and that the fine levy  to make a tenant modern to the praecipe be not good and pass no estate and so  the recovery will be no bar and that the lessor of the plaintiff must have  judgement