Charles Howard contra Le duke de norfolk all car f S c select case in chancery  Charles c c perpetuity or entail a term for year with remainder over the  plaintiff by his bill seek to have execution of a trust of a term of year of  the barony of Grostock the case be this the earl of Arundel the duke of  Norfolk father by lease and release year settle the barony of g and other land  to himself for life then to the countess Elizabeth his wife for life and after  her decease there be a term limit to the Lord Dorchester and other trustee for  year under a trust to be declare in a deed of the same date with the chancery  report release and the limitation of the inheritance after the term of year be  first to Henry Howard now duke of Norfolk and the heir of his body then to Mr  Charles Howard the now plaintiff brother of the say Henry and so to all his  brother successive in Tale male remainder over then by the say other deed the  earl declare the trust of the term of year and that deed in the recite part  declare that it be intend the say term shall attend the inheritance and the  profit shall go to such person and in such manner as be therein after limit  videlicet to Henry Howard now duke of Norfolk and the heir male of his body so  long as Lord Thomas Lord Maltrevers old son of the say earl of Arundel or any  issue male of his body shall be live but in case he shall die without issue  male in the lifetime of Henry Howard not leave his wife ensient with a son or  in case after the death of Thomas without issue male the honour of the earldom  of Arundel shall descend to Henry Howard then Henry Howard and his heir to be  exclude of the trust and then it shall be to Charles the plaintiff and the  heir male of his body remainder in like manner to other brother after this the  contingency do happen for Thomas duke of Norfolk die chancery report without  issue and the earldom of Arundel as well as the dukedom of Norfolk descend to  Henry now duke of Norfolk by Thomas his death without issue present upon this  the marquis of Dorchester the survive trustee assign the term to one Marriott  he assign it to the now duke of Norfolk and the duke suffer a recovery to the  use of he and his heir and the plaintiff bill be to have execution of the  trust of this term to the use of himself and his heir male of his body the  defendant insist that by the assignment by Marriott to my Lord duke Henry the  term be surrender and quite go the common recovery which bar the remainder  which the other brother have will also be a bar to the trust of this term and  that the trust of a term to Henry and the heir male of his body until by the  death of Thomas without issue the earldom shall descend upon he and after that  to Charles and the heir male of his body be a void limitation of the remainder  to Charles the plaintiff insist though the term b the survivor be go and merge  in the inheritance yet the trust of that term remain in equity that this be  not a term that attend the inheritance but chancery report it be a term in  gross and so not bar by the recovery and that the limitation of the remainder  in contingency be good in law and relief ought to he have in this court the  Lord chancellor Nottingham the case be of great consequence call the judge to  his assistance videlicet the Lord chief justice Pemberton the Lord chief  justice north and the Lord chief baron Montague and they make one single point  in the case whether this contingent trust of a term limit to the plaintiff  Charles and the heir of his body upon the die of Thomas without issue male  whereby the honour do descend to Henry be good in point of creation and  limitation for as for the recovery if this be not a good limitation in point  of creation the recovery will do nothing so that suppose it to go along with  the inheritance and if this take effect then it will suffer no prejudice by  the recovery and as for the assignment by Marriott to the duke if this court  decree it for the plaintiff then it be a breach of trust and then he must  answer for it and so must the duke for it be a surrender to a person who have  notice of the trust if for the defendant then it be of no weight so that the  whole rest upon the first single point videlicet whether chancery report it be  a good limitation upon the contingency to Charles or as they call it a spring  trust chancery report er p and the say three judge be all of opinion that it  be a void limitation and that it ought to be decree for the defendant they say  there be great difference as to the limitation of term that be in gross and  term that attend the inheritance as to term in gross they be not capable of  limitation to one after the death of another without issue but in term  attendant upon a inheritance there may be such a limitation if the inheritance  be so limit and not else now the term be capable of a limitation to Henry and  the heir male of his body and for want of suchIssue to Charles and the heir  male of his body because it have a inheritance to support it but now to put  another limitation it that upon the die of Thomas without issue whereby the  earldom shall end this shall go over to Charles that can be for it have no  freehold to support it and so it be a term in gross further there can by the  rule of law or equity be a remainder for year of a term limit after a  estatetail neither direct nor upon contingency as in burgess case but the law  will allow a remainder chancery report direct upon a estate for life so  likewise upon a contingency if that be to happen during the continuance of the  particular estate but this case be a step further and not to be allow they  rely chief upon child and baili case which be put thus by chief baron Montague  a devise by a of a term to William his old son and his assign and if he die  without issue then to Thomas his young son it be judge in the exchequer  Chamber to be a void remainder because thereby a perpetuity will ensue though  it be argue in that case that it be give upon a contingency to the young son  which will soon be determine and end in a short time chief baron Montague put  this for law a term may be limit to one and the heir male of his body upon a  contingency to happen first with limitation over if that contingency do not  happen it be a good limitation as if a term be limit to the wife for life and  then to the old son if he overlive his mother and the heir male of his body  the remainder over to a young son if the old son die in the life of the mother  the limitation to the second son may be good but if there be a instant  estatetail create of a term though there be a contingency as to the  expectation of he in chancery report remainder yet this be such a total  disposition of a term as after which no limitation of a term can be and so the  judge be of opinion that the plaintiff have no right to the term but the  decree ought to be for the defendant the Lord chancellor Nottingham differ  from the judge and decree for the plaintiff he put some step or preliminary  which he agree with they and which be clear that the term in question though  it be attendant on the inheritance at first yet upon the happen of the  contingency it be become a term in gross that the trust of a term in gross can  be limit no otherwise in equity than the estate of a term in gross can be  limit in law the legal estate of a term for year whether it be a long or a  short term can be limit to any man in tail with the remainder over to another  after his death without issue this be a direct perpetuity if a term be limit  to a man and his issue and if that issue die without issue the remainder over  the issue of that issue take no estate and yet because the remainder over can  take place till the issue of that issue fail that remainder be void too reeve  case chancery report if a term be limit to a man for his life and after to his  first second and three son in tail successive and for default of such issue  the remainder over though the contingency never happen yet the remainder be  void though there be never a son bear to he that look like a perpetuity sir  William Buckhursts case one case more and that be burgess case a term be limit  to one for life with contingent remainder to his son in tail with remainder  over to his daughter though he have no son yet because it be foreign and  distant to expect a remainder after the death of a son to be bear without  issue that have a prospect of a perpetuity be adjudge void if a term be devise  or trust of a term limit to one for life with twenty remainder for life  successive and all the person in be at the time of such limitation these be  all good remainder a term be devise to one for eighteen year after to c his  old son for life chancery report er p and then to the old issue male of c for  life though c have not any issue male at the time of the devise or death of  the devisor but before the death of c it be good be a contingency that will  speedy be wear out cotton and heath case for chancery report there may be a  possibility upon a possibility and a contingency upon a contingency and in  truth every executory devise be so and therefore the contrary rule give by  Lord Popham in the rector of Chedingtons case be not reason these thing be  agree by all but the point be the trust of a term for year be limit to Henry  in tail provide if Thomas die without issue in the life of Henry so that the  earldom shall descend upon Henry then to go to Charles in tail and whether  this be a limitation to Charles in tail be the question my Lord chancellor  conceive it a good limitation as a spring trust to arise upon a contingency  and which be not of a remote or long consideration as for the legal reason of  this opinion they be these many man have no estate but what consist in lease  for year now it will be absurd to say that he who have no other estate than  what consist in lease for year shall be uncapable to provide for the  contingency of his own family though they be direct in his immediate prospect  he shall not make provision for wife and child upon marriage chancery report  it be the opinion of the Lord chief justice Pemberton that have it be thus pen  it have be good if Thomas die without issue male live Henry so that the  earldom descend upon Henry then the year limit to he and his issue shall cease  but then a new term of year shall arise and be limit to the same trustee for  the benefit of Charles in tail now what difference be there why a man may not  raise a new spring trust upon the same term as well as a new spring term upon  the same trust it be true in Edward in the time of Lord chancellor rich all  the judge deliver their opinion if a term of year be devise to one provide if  devisee die live I S then to go to I S be absolute void but in Elizabeth dyer  foe it be hold by the judge to be a good remainder and that be the first time  that a executory remainder of a term be hold to be good as for child and  Bayless case the case be true report by crook a term of seventy year be devise  to Dorothy for life then to William and his assign all the rest of the term  provide that if William die without issue live at the time of his death then  to Thomas which be in effect the present case but there be more in it William  have the whole chancery report term to he and his assign Dorothy be executrix  and grant the lease to William and the record go further after the death of  Thomas without issue it be to go to the daughter which be a plain affectation  of a perpetuity but however this case be contradict by other resolution cotton  and heath before cite and wood and sander in this court which be this a long  lease be limit and declare thus to the father for sixty year if he live so  long then to the mother for sixty year if she live so long then to John and  his executor if he survive his father and mother and if he die in their  lifetime have issue then to his issue but if he die without issue live the  father or mother then the remainder to Edward in tail John die without issue  in the lifetime of the father and mother it be resolve by Lord keeper Bridgman  assist by two judge that the remainder to Edward be good the whole term have  vest in John if he have survive yet the contingency never happen and so wear  out in the compass of two life in be the remainder over to Edward may well be  limit upon it chancery report object where will you stop if not at child and  Bayless case resp every where where there be apparent danger of a perpetuity  but so be not this case the equitable reason be it be prudence in the earl to  take care that when the honour descend upon Henry a little better support  shall be give to Charles who be the next man and tread upon the heel of the  inheritance it be very probable and almost moral certain that Thomas will die  without issue he be not of a good state of body or mind and while such they be  circumspect that he shall not marry it be a hard thing for a son to tell his  father that the provision he have make for his young brother void in law but  it be much hard for he to tell he so chancery report er p in chancery for  there no conveyance be ever to be set aside where it can be sort by a  reasonable construction the law do in many case allow of a future contingent  estate to be limit where it will not allow a present remainder to be limit a  man have a estate limit to he his heir and assign this be a feesimple but if  he die without issue live I S or in such a short time to I d this be chancery  report good though it be impossible to limit a remainder of a fee upon a fee  yet it be not impossible to limit a contingent fee upon a fee pell and browns  case if a lease come to be limit in tail the law allow not a present remainder  to be limit thereupon yet it will allow a future estate arise upon a  contingency only and that to wear out in a short time the limitation in wood  and sander case be after a express entail and yet adjudge good because it be a  remainder upon a contingency that be to happen during two life which be but a  short contingency and the law may very well expect the happen of it but our  case be strong because it be only during one life it be decree the plaintiff  shall enjoy this barony for the residue of the term and the defendant to make  he a conveyance accord and to account with the plaintiff for the profit  receive since the death of duke Thomas and which they or any of they may have  receive without wilful default the duke of Norfolk exhibit a bill of review in  chancery to which Charles Howard put in a plea and demurrer which be argue  before Lord keeper north and he overrule the say plea and demurrer and reverse  the Lord chancellor decree chancery report but afterward this decree be  reverse in parliament and the first decree affirm in behalf of Charles Howard