I take it then to be good both in law and equity; and if I could alter my opinion, I would not be ashamed to retract it; for I am as other men are, and have my partialities as other men have. When all this is done, I am at the bar desired to consider further of this case: I would do so, if I could justify it; but expedition is as much the right of the subject, as justice is, and I am bound by Magna Charta, nulli negari, nulli differre justitiam. I have taken as much pains and time as I could to be informed; I cannot help it if wiser men than I be of another opinion; but every man must be saved by his own faith, and I must discharge my own conscience. I have made several decrees since I have had the honor to sit in this place, which have been reversed in another place, and yet I was not ashamed to make them, nor sorry when they were reversed by others. And I assure you, I shall not be sorry if this decree which I do make in this case be reversed too; yet I am obliged to pronounce it, by my oath and by my conscience. For I cannot adjourn a case for difficulty out of an English court of equity into the parliament; there never was an adjournment propter difficultatem, but out of a court of law where the proceedings are in Latin. The proceedings here upon record are in English, and can in no way now come into parliament, but by way of appeal, to redress the error in the decree. I know I am very likely to err, for I pretend not to be infallible; but that is a thing I cannot help. Upon the whole matter, I am under a constraint, and under an obligation which I cannot resist. A man behaves himself very ill in such a place as this, that he needs to make apologies for what he does; I will not do it. I must decree for the plaintiff in this case, and my decree is this. That the plaintiff shall enjoy this barony for the residue of the term of two hundred years; the defendant shall make him a conveyance accordingly, because he extinguished the trust in the other, and the term. contrary to both law and reason, by the merger and surrender, and common recovery. And that the defendants do account with the plaintiff for the profits of the premises by them or any of them received since the death of the said Duke Thomas, and which they or any of them might have received without wilful default; and that it be referred to Sir Lacon William Child, Knight, one of the masters of the court, to take the said account, and to make unto the defendants all just allowances; and what the said master shall certify due, the said defendants are to pay unto the plaintiffs, according to the master's report herein to be made: and that the defendants shall forthwith deliver the possession of the premises to the plaintiff, and that the plaintiff shall hold and enjoy the said Barony of Grostock, with the lands and tenements thereunto belonging, for the residue of the said term of two hundred years, against the defendants, and all claiming by, from, or under them. And it is further ordered and decreed, that the said defendants do seal and execute such a conveyance of the said term to the plaintiff as the master shall approve of, in case the parties cannot agree to the same; but the defendants are not to pay any costs of the suit.* EYRES v. FAULKLAND. (Court of Common Bench, 1697. 1 Salk. 231.) H. possessed of a term for ninety-nine years devised his term to A. for life, and so on to B. and five others successively for life; all seven being now dead, the question was, Who should have the residue of the term? Et per TREBY and POWELL: Anciently, if one having a term devised to A. for life, remainder to B., such remainder was void: 1st. Because an estate for life is a greater estate; and, 2dly, Because the term included the whole interest, so that when he devised his term, nothing remained to limit over. Afterwards the law altered; for a devise of the term to B., after the death of A., was held good; and by the same reason to A. for life, remainder to B., for it was but disposing of the interest in the mean time but a devise to A. in tail, remainder over, is too remote so if it be to A., and if he die without issue, remainder over. As to the principal case, they held that all the remainders were good; and that the first devisee, and so every devisee in his turn, had the whole term vested in him; during which the next man in remainder, and so every other after him, had not an actual remainder, but a possibility of remainder, and the executor of the devisor a possibility of reverter; for there may be a possibility of reverter, even where no remainder can be limited, as in the case of a gift to A. and his heirs while such a tree stands: No remainder can be limited over, and yet clearly the donor has a possibility of reverter, though no actual reversion; a fortiori, there shall be a possibility of reverter, where a remainder may be limited over; for the testator gave but a limited estate, and what he has not given away must remain in him; and the words for life can be no more rejected in the last limitation than in the first. WRIGHT v. CARTWRIGHT. (Court of King's Bench, 1757. 1 Burrows, 282.) On a case stated from the assizes. Edmund Plowden, being seised in fee, demised on the 5th of October, 1676, by deed (viz. by indenture of lease between him and Elizabeth Cartwright, only), to the said Elizabeth Cartwright for 99 years, if she should so long live; and after her death, if she happen to die within 4 This decree of Lord Chancellor Nottingham was reversed on bill of review by Lord Keeper North, May 15, 1683; but on appeal to the House of Lords, the decree of the Lord Keeper was, June 19, 1685, reversed, and the decree of the Lord Chancellor affirmed (3 Ch. Cas. 53, 54). 1 the said term, or other end or determination of the said term, the remainder thereof to Rowland Cartwright her eldest son (then under age), for and during the residue of the said term, from thence ensuing and fully to be complete and ended: yielding and paying, &c., and doing suit at a mill, &c.; with a penalty for every time that she or Rowland shall grind at another mill; and paying a heriot on the death of either. And it is covenanted that both of them shall repair, &c., and the lessor on his part covenants that both shall quietly enjoy, &c. Elizabeth Cartwright entered, and was possessed; and died on the 4th of September, 1694. Whereupon Rowland Cartwright entered, and was possessed, till the said Rowland died; which happened on the 5th November, 1753. The lessor of the plaintiff is heir-at-law to Edmund Plowden, the lessor. The defendant is the personal representative of Rowland Cartwright. The question is "whether the term exists;" i. e., whether it continues beyond the life of Elizabeth Cartwright. For if the term does not continue beyond the life of E. C., then the lessor of the plaintiff has a title to recover. If it does, then the defendant hath a title, as representative of Rowland Cartwright. Mr. Aston, for the plaintiff, cited Sheppard's Touchstone of Common Assurances, 274; where it is said, that if a man makes a lease to A. for 80 years if he so long live; and if he die within the said term or alien, that then his estate shall cease; and by the same deed the lessor farther lets to B. for so many years as shall then remain unexpired after, &c. for the residue of the said term of 80 years, if he shall so long live; in this case the lease to B. "during the residue of the term" is void for after the death of A. the term is at an end. But if he say, "for and during the residue of the 80 years," it is good. Mr. Nares, for the defendant, was stopped by the court. LORD MANSFIELD. The distinction just cited from Sheppard (which he takes from the Rector of Chedington's Case), makes no difference; if the word "term" may signify the time, as well as the interest: for then it becomes merely a question of construction, "which sense the word ought to be understood in." So Anderson argued in Green v. Edwards: he said, "If the wife had been a party to the deed, durante termino should not be taken for the interest, but for the time." He said, "The word term cannot be taken to mean the interest which the husband had for 90 years.” (For if it is so understood, by his death the whole would be determined; and the wife could have nothing, and therefore it could not be used in this sense. But the lessor, by the word "term," must mean the time of 90 years and the word "term" signifies as well the time or space of 90 years, as the interest.) The other judges held the limitation by way of remainder to be void, from the uncertainty of commencement: and denied that the wife's being a party would have made any tion. altera The old cases held "that there could be no remainder or substitution of a term after an estate for life, by deed or will." It was a mere possibility. It was void, from the uncertainty of commencement. There was no particular estate. The gift of a term (like any other chattel) for an hour, was good forever. The objections were subtle and artificial. When long and beneficial terms came in use, the convenience of families required that they might be settled upon a child, after the death of a parent. Such limitations were soon allowed to be created by will: and the old objections were removed, by changing the name, from remainders, to executory devises. The same reason required that such limitations might be created by deed; as, for instance, marriage settlements, to answer the agreement of parties, and exigencies of families. Therefore, to get out of the literal authority of old cases, an ingenious distinction was invented: a remainder might be limited for the residue of the years; but not for the residue of the term. Now in this case, upon the true construction of the lease, I am clearly of opinion "that the land is demised to the son for so many of 99 years as should be unexpired at the death of his mother." There are many maxims of law, that deeds, especially such "as execute mutual agreements for valuable consideration, should be construed liberally, ut res magis valeat, according to the intent:" which ought always to prevail, unless it be contrary to law. The passage from Coke Littleton 45, cited by Mr. Aston, defines the word "term," to signify, in understanding of law, "not only the limits. and limitations of time, but also the estate and interest which passes for that time." If in this lease the word be taken in the latter sense, the widow can only have it for so many of 99 years as she should live; and the son have nothing afterwards. But it is manifest that an interest was understood to continue after her death, to be enjoyed by her son. From the course of nature it could not be supposed that she would outlive the 99 years. Rowland is to pay a penalty for grinding at another mill. He is to pay a heriot on the death of his mother. He is to repair. The lessor covenants "that Rowland shall quietly enjoy," i. e. for so many years as should not be run at the death of his mother. The first sense of the word makes everything consistent and effectual: the second sense destroys one half of the lease, as repugnant and contradictory to the other. There ought to be no doubt, therefore, in which sense the word should be understood. Mr. Aston has laid no stress upon the only objection which weighed with Anderson, so long ago as the 33d of Elizabeth: viz. "That Rowland was no party to the lease:" and rightly. The reason why he was no party, appears from the lease: he was then an infant. The mother contracts, and procures this limitation for him. A grant may be made to a person by a deed to which he is no party. Rowland accepted, and actually enjoyed, after his mother's death, from the 4th of September, 1694, to his own death, the 5th of November, 1753. The lease was so intelligible to every unlearned eye that nobody doubted of his title for 60 years. Limitations of terms are now of general use. Their bounds are settled. The rules concerning them are certain and established. When they came to be allowed by will, or by declaration of trust, the substantial reason was the same for allowing them by deed. A strained construction should not be made to overturn the lawful intent of the parties. It was lawful to secure this lease for the benefit of the mother during her life, and afterwards by way of provision for her son. All the parties undoubtedly intended it. The covenant here, "that Rowland should enjoy from the death of his mother, for the residue of 99 years," is sufficiently certain; and might of itself amount to a lease. Mr. Justice DENISON. This must be taken that she should hold it for so much of the term of years as she should live; and Rowland during the remainder. The intention of the deed is obvious: and it certainly shows (upon the whole tenor of it) that the intention of the parties was "that both should enjoy during the whole term and number of years." And if we can support the intention, by any construction, we will do it. Mr. Justice FOSTER was clear that the intention was that both should enjoy during the whole term and number of years: viz. Elizabeth for so long of it, as she should live; and Rowland during the remainder. All the circumstances show this: and the reserving a heriot upon the death of Rowland proves the intention to have been "that the term should continue to Rowland after the death of his mother." And the covenants all along run, "that Rowland shall quietly enjoy." Therefore he concurred. PER CUR. unanimously (Mr. Justice WILMOT absent). SECTION 2-PERSONAL PROPERTY OTHER THAN ANONYMOUS. (Court of Common Pleas, 1641. March 106, pl. 183.) A prohibition was prayed unto the Council of the Marches of Wales, and the case was thus: A man being possessed of certain goods, devised them by his will unto his wife for her life, and after her decease to J. S., and died. J. S. in the life of the wife did commence suit in the court of equity, there to secure his interest in remainder, and there |