the limitation to a perpetuity, is not fufficient to render fuch conveyance or limitation void. The interpofition of trustees, to support contingent remainders, is an invention introduced about a century ago; an invention, which tended greatly to fufpend and restrain the powers of alienation, and yet it is now become the established mode of fettlement: every limitation of eftates, and every restraint of alienation, has a propor. tionable tendency, in fome fenfe, to a perpetuity, That if the means, made use of in this will, to make part of the Duke of Marlborough's eftate accompany the honours and estates for one fucceffion beyond the common limitations, were regular and according to the course of law, they seemed to introduce no danger of a perpetuity; fince the reftraint would not go beyond the fons of the feveral noble perfons named in the will; and the immediate defcendants of fuch fons would be tenants in tail, and have a power of alienation. That, if the trustees had executed this power upon the birth of the appellants, and the refpondent the Duke, it was apprehended, that a court of equity would not have interpofed to impeach it; and if, after an execution of the power, the limitations being to perfons in effe, though for life only, would have been fupported, the neglect of the trustees ought not, in equity, to prejudice the infant ceftui que trufts; but, it being a power which the trustees were enjoined to execute, the court fhould confider it as executed from the respective times, when it ought to have been executed; that is, from the births of the feveral fons of the refpective nominees.

On

On behalf of the refpondent, the Duke of Marlborough, it was contended that, in the ordinary course of family fettlements, nothing lefs than an eftate tail is limited to perfons not in effe. It has been hitherto understood to be the only method of carrying on fucceffive remainders of inheritance, by way of ftrict fettlement, in the families of fucceffive tenants for life, confiftently with the rules of law: for, if the grantor fhould, after the first vefted eftate of freehold, limit a contingent eftate or use for life to a perfon unborn, and then follow it with contingent remainders in tail to the fons or children of fuch unborn tenant for life, fuch contingent limitations of the inheritance would be void. This arifes from the policy of the law against perpetuities, that the vesting of the inheritance or ownership may not be fufpended beyond the compass of a life or lives in being, or beyond the age of 21 of the first unborn tenant, in tail, during whofe infancy the law itself will reftrain his power of alienation. That whoever has the vested estate in land, is the abfolute owner, whether he is tenant in fee-fimple 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 eftate. Conditions to reftrain thefe powers generally are void, as being repugnant to the eftate limited; and it is admitted, that by the direct limitations in a deed, or devises in a will, the grantor or teftator cannot limit an eftate tail to a perfon unborn and the heirs of his body, and, immediately upon the event of his birth, direct it to ceafe as to fuch a tenant in tail, and continue as to his iffue. If the law is undoubted, equity muft follow it; that the fame fubftantial

Kk 3

Infra f. 31.

substantial rules of property may be followed by both jurifdictions. And, as the law will not allow the teftator, by direct limitations, to turn a contingent remainder-man in tail into a tenant for life, at the very instant of time when the eftate would veft, fo, neither will equity allow him, by way of revocation, or, rather, by way of imperative truft, to enable trustees, as his inftruments, to convert the tenant in tail after his birth into a tenant for life; which change the author of the truft himself could not effectuate, by any proper legal limitations originally inferted in his will. Quodcunque prohibetur fieri ex directo, prohibetur et per obliquum. That if the power given to the truftees, to revoke the uses upon the birth of the respondent, was allowed to be good, it would have been equally fo, had it extended to all future generations, and made the eftate for ever unalienable, which would be hardly contended, The teftator most clearly intended a perpetuity, and openly avowed his defign: with this view, he kept the different acts of parliament conftantly before him, both in his will and in the deed of 1712; adopting the fame form of expreffion, with the falvo, of as far as may be by law. And, being fill confcious that the ingenuity of his lawyers, however fkilful, could not keep pace with the legislative authority, he requested the sanction of parliament to the fettlement of his eftates pursuant to his will, and according to his intentions expreffed therein; fo that the fame might be unalienable as the honour and manor of Woodstock,

After hearing counfel on this appcal, the Judges were ordered to deliver their opinions to the House upon

the

the following question; viz. "Whether by the rules "of law, an estate tail, limited to the use of perfons "unborn by any deed or will, can, by virtue of any

power given by fuch deed or will to trustees, be re"voked upon the births of fuch perfons, and a new "eftate be limited to fuch perfons for their lives re

66

spectively, with remainder to the issue of such per"fons refpectively in tail male?" And, the Lord Chief Juftice of the Common Pleas having delivered the unanimous opinion of the Judges in the negative, it was thereupon ordered and adjudged, that the appeal fhould be difmiffed, and the decree therein complained of be affirmed.

But not to

Remainders

after Eftates

Tail.

§ 18. It is, however, otherwise, with refpect to contingent uses limited upon or after an estate tail; thefe may be given fo as to take effect at any indefinite period of time, without regard to the rule above stated : because a recovery fuffered by the tenant in tail, before Vide Tit. 36. the happening of the event on which the limitation is to arife, will destroy fuch limitation.

§ 19. Thus, if an estate be limited to A. in tail, or to A. for life, remainder to B. in tail, or to the firft and other fons of A. in tail, a fimilar limitation over to a stranger, to take place on C.'s dying without iffue, would be good, because it may be barred by a re

covery.

1.2.

§ 20. Such is the provifo frequently inferted in fet- 1 Inft. 327 a. tlements, where, after a limitation of feveral ufes in ftrict fettlement, a claufe is inferted for fhifting the eftate

Kk 4

eftate to a fecond branch of the family on the event of another estate ever coming to any of the perfons to whom the fettled eftate is limited, which, by poffibility, may not happen for many centuries, and then actually take place.

21. It was formerly much doubted, whether a limitation for life to an unborn perfon was good; but it is now fully fettled, that fuch a limitation is valid.

In a modern cafe, Lord Kenyon faid," I remem. "ber hearing Lord Mansfield fay, that when the cafe "of Spencer v. Duke of Marlborough was to be argued "in the House of Lords, there was found to be a mif"take in the printed reafons on the part of those who "oppofed 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 fuch a limitation: they therefore cancelled that reafon, and framed another, ftating the propofition to be, that there could not be a limitation to "an unborn child for life, with limitations to the issue

of fuch unborn child in fucceffion; and that doc"trine was distinctly laid down by the learned Judge "who delivered the opinion of the Judges in the "House of Lords."

§ 22. This doctrine has been fully confirmed in two modern cafes; in one of which, Lord Kenyon faid, "The law is now clearly fettled, that an estate for "life may be limited to unborn iffue, provided the de"vifor