the neglect of the trustees ought not in equity to prejudice the infant cestuique trusts: but it being a power which the trustees were enjoined to execute, the Court should consider it as executed from the respective times when it ought to have been executed; that was from the birth of the several sons of the respective nomi nees. On behalf of the respondent, the Duke of Marlborough, it was contended, that in the ordinary course of family settlements, nothing less than an estate tail was limited to persons not in esse: it had been, till then, understood to be the only method of carrying on successive remainders of inheritance, by way of strict settlement, in the families of successive tenants for life, consistently with the rules of law; for if the grantor should, after the first estate of freehold, limit a contingent estate or use for life, to a person unborn, and then follow it with contingent remainders in tail to the sons or children of such unborn tenant for life, such contingent limitations of the inheritance would be void. This arose from the policy of the law against perpetuities, that the vesting of the inheritance or ownership might not be suspended beyond the compass of a life or lives in being, or beyond the age of twenty-one, of the first unborn tenant in tail, during whose infancy the law itself would restrain his power of alienation. That whoever had a vested estate of inheritance in land, was the absolute owner; whether he was tenant in fee simple or tenant in tail, it being equally contrary to the rules of law, to prohibit either from exercising the powers of alienation incident to his estate. Conditions to restrain those powers, generally, were void, as being repugnant to the estate limited; and it was admitted that by the direct legal limitations in a deed, or devises in a will, the grantor or testator could not limit an estate tail to a person unborn, and the heirs of his body, and immediately 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 was undoubted, equity must follow it, that the same substantial rules of property might be observed by both jurisdictions. And as the law would not allow the testator, by direct limitations, to turn a contingent remainder-man in tail into a tenant for life, at the very instant of time when the estate tail would vest, with its incident right of alienation; so neither would equity allow him, by way of power of revocation, or rather by way of imperative trust, to enable trustees, as his instruments, to convert the tenant in tail, after his birth, into a tenant for life; which change the author of the trust himself could not effectuate by any proper legal limitations, originally inserted in his will. Quodcunque prohibetur fieri ex directo, prohibetur et per obliquum. That if the power given to the trustees to revoke the uses upon the birth of the respondent was allowed to be good, it would have been equally so, had it extended to all future generations, and made the estate for ever unalienable, which would be hardly contended. After hearing counsel on this appeal, the Judges were ordered to deliver their opinions to the House upon the following question, viz. "Whether, by the rules of law, an estate tail limited to the use of persons unborn, by any deed or will, can, by virtue of any power given by such deed or will to trustees, be revoked upon the births of such persons, and a new Heath v. estate limited to such persons for their lives respec- 2 Eden, 330. tively, with remainders to the issue of such persons successively in tail male?" And the Lord Chief Justice of the Common Pleas having delivered the unanimous opinion of the Judges in the negative, the decree was affirmed. Heath, tions of trust of 25. The rules respecting perpetuities are as appli- And to declaracable to declarations of trust of terms for years, as to terms for years. any other conveyances. But the cases on this subject being governed by the same principles as those by which executory devises of terms for years are reguTit. 38. c. 19. lated, they will be stated under that head. But not to remainders after estates tail. Tit. 36. c. 8. Tit. 16. c. 5. 1 Inst. 327. a. n. 1. Doe v. Tit. 16. c. 5. An unborn person may be 26. These rules do not, however, apply to contingent uses limited upon, or after an estate tail; which may be given so as to take effect at any, indefinite period of time, because a common recovery suffered by the tenant in tail, before the happening of the event on which the limitation is to arise, will destroy such limitation. 27. Thus although a shifting clause, annexed to the limitation of a use in fee, must take effect within the period above mentioned; yet where an estate is limited to a person for life, with remainder to his first and other sons in tail; with a proviso, that if a certain estate shall devolve on the tenant for life, or any of his sons, the estate limited to him, and also those limited to his sons, shall cease, as if he and they were dead without issue, and the estate shall go over to another person; this clause is good: because when the first or other son attains twenty-one years and comes into possession, he may bar his estate tail, and also the effect of this clause, by a common recovery; so that there is no danger of a perpetuity. 28. It was formerly much doubted whether a limimade tenant for tation for life, to an unborn person, was good. But it is now fully settled that such a limitation is valid. life. 1 East's R. 452. In a modern case Lord Kenyon said "I remember hearing Lord Mansfield say, that when the case of Spencer v. Duke of Marlborough was to be argued in the House of Lords, there was found to be a mistake in the printed reasons, on the part of those who opposed the execution of the power, in the manner intended. For it had been stated that there could not be a limitation to an unborn child for life; but that was found to be wrong;* for certainly there may be such a limitation; they therefore cancelled that rea * Mr. Booth was the person who pointed out that circumstance to Mr. Filmer.-Cases and Opinions, Vol. ii. 434. son, and framed another, stating the proposition to be that there could not be a limitation to an unborn child for life, with limitations to the issue of such unborn child, in succession; and that doctrine was distinctly Hay v. laid down by the learned Judge who delivered the 3 Term Rep. opinion of the Judges in the House of Lords." Coventry, 83. S. P. v. Elwes. 29. An estate may also be limited, by an appoint- Brudenell ment, to a person for life, who is not born at the time Ante, c. 16. when the deed by which the power was created, was executed. remainder estate. 30. It is now settled that a vested remainder may be And a vested limited upon an estate for life given to an unborn per- limited on that son; and Lord Alvanley has said "A question might arise how far an unborn child is to be made tenant for 2 Ves. jun. 357. life; but it is established on good principle, in precedent, certainly that this may be. The doubt was whether this was not tying up the estate beyond lives in being and twenty-one years afterwards; but that is not so, where the absolute interest is disposed of, and vested, though part is given for life; for that person, with the person having the absolute interest, may dispose of it. It is not unalienable.' to the issue of an unborn per son. Dev. 502. 6th ed. 31. But it is equally clear, from what has been But no estate stated in the preceding sections, that no estate can be can be limited limited to the issue of an unborn person, as a purchaser, that being a possibility upon a possibility, Fearne Ex. which the law will in no case admit; and would also render an estate so limited unalienable, for a longer Beard v. period than is allowed. But a limitation of this kind 5 Barn. & Ald. would not render the limitation to the unborn person for life void. Westcott, 801. created by act of Parlia 32. Estates may be rendered unalienable by act of Perpetuities parliament, as in the case of estates tail granted by the crown to individuals, as a reward for services ment, where the remainder or reversion is vested in the Vide Tit. 3€ Crown; which cannot be barred by fine or recovery. 33. There are also several instances of particular estates, which are rendered unalienable by act of par c. 10. Mountjoy's case, 5 Rep. liament. Thus, by a special act of parliament made in 27 Henry VIII. the manor of Hemston Arundel was entailed to Anne wife of Charles Lord Mountjoy, and John Pawlett and Elizabeth his wife, and to the heirs of their bodies begotten; with a proviso, that they should not bar the entail; which was held good by the Court of King's Bench. 34. By a private act, 3 Charles I. the castle, honour, manor, and lordship of Arundel, together with other estates, were limited to Thomas Earl of Arundel and Surry, and the heirs male of his body, remainder to the heirs of the body of the said earl, remainder to Lord William Howard, and the heirs male of his body; remainder to the heirs of the body of the said Lord William Howard, remainder to the said Earl of Arundel and his heirs. And it was enacted, that neither the said Thomas Earl of Arundel, nor any of the heirs male or other heirs of his body, nor any other person or persons, his or their heirs male of his or their bodies issuing, to whom any estate of inheritance of or in the premises, or any part thereof, should thereafter come, descend, or accrue, by force or means of the said act, should thereafter alien, give, grant, bargain and sell, or otherwise convey away the same, or any part thereof, or any other thing do, which should or might be to the disherison of the heirs inheritable by force of the said act, or whereby any of them should be barred, or put from entry into the premises. 35. By the stat. 5 Anne, c. 3. it is enacted, that the Duke of Marlborough shall stand and be seised of the honour, manor, and park of Woodstock, for and during the term of his natural life, remainder to the heirs male of his body, remainder to all his daughters, and the heirs male of their respective bodies, severally and successively, according to the priority of their birth ; with a proviso, that neither the duke or the heirs male of his body, nor any of his daughters or the heirs male |