"affigns, the furvivor of them, &c. and the other moiety to "the child or children of Jofeph, c. and if 7. B. died with"out iffue, to fuch child, &c. of my daughter, &c. with a "remainder over; the teftator dies. f. B. marries and has a fon, then died; fofeph (who was the teftator's grandson) had 66 no fon born at the time of the death of J. B. but had a fon four years after, and upon this a bill was brought by the heir "at law, infifting that these limitations were void, particular"ly to the fon of Jofeph, not being born till four years after "the death of J. B."

The first question was, Whether it was to be confidered as a legal eftate fubfifting in the truftees, or whether it was not a ufe executed by the ftatute? Lord Talbot (and myself on a rehearing) were of opinion, "that the legal estate in fee was in "the trustees, and all the limitations, in the fubfequent in"tereft, were trufts."

The next queftion was, Whether the limitation to the son of Jofeph was good? and if fo, Whether as an executory devise or a contingent remainder? Lord Talbot "was of opinion,

that it might be good even as an executory devife, in a legal "limitation, and the only objection was, that the limitation 66 was in verba de præfenti: but he faid the words were to be "confidered as the teftator meant them, that he knew Jofeph "was an infant and young, and devifing a moiety to his child "(knowing he had none) muft neceffarily intend it future, " and therefore it was impoffible to fhew an intention more

clearly of children thereafter to be born.-But he went on, "that when J. B. had a child born, that had a freehold in the "truft during the life of 7. B. whether, after that, it was to "be confidered as an executory devife, or a contingent remain"der, the child of J. B. having a kind of freehold in the truft "itfelf? he held, that if taken as a remainder (in cafe of a "limitation of legal estate) it was clearly void, for the freehold "would be in abeyance for 4 years, between the death of the

fon of 7. B. and the birth of the son of Jofeph; but he faid, "the reafon of that rule failed in the cafe of trufts, and was of "opinion, that the firft eftate in the trustees preferved the whole

truft, and therefore, whether it was to be confidered as an "executory devife, or contingent remainder of a trust, that it "was good, and that the plaintiff was intitled to a moiety."

This refolution comes up to the prefent in all its points. As to the third point, I fhall not lay much ftrefs upon it, and I own I took it to be clearly otherwife, when mentioned at the bar, but on confideration, I think there is more to be faid in fupport thereof than I was at first aware of.

anceflor for life,

The objection is, that the particular eftate, and remainder muft Where an eftate be created at one and the fame time, as making parts of the fame is limited to the and afterwards to the heirs males of his body, the eftates are connected, and make an eftate tail in the ancestor, where it is by the fame conveyance: The tame has been held where it did not arife by the fame conveyance, but by way of refulting ufe; Lord Chancellor inclined to think, that the refulting truft of a、 freehold, to fupport contingent remainders of a trust, might connect in the fame manner with the limitation in tail, though not created together with it.

In a limitation to

gent remainders, it is not material

eftate; and this is undoubtedly the general rule; but it is equally a rule at law, that in cafes where an eftate is limited to the ancestor for life, and afterward to the heirs males of his body, that the eftates are connected, and make an eftate tail in the anceftor, where it is by the fame conveyance; fo is Shelly's cafe, and it has also been held to connect and make one eftate tail, where it did not arife by the fame conveyance, but by way of resulting use, and fo refolved by three judges in the cafe of Pybus and Mitford, 1 Vent. 373. A. covenanted to stand seised of lands, to the use of the heirs males begotten or to be begotten on the body of his fecond wife, and died at the time of the deed; he had iffue by her, a fon R. Hale, Wild, and Rainsford held, that, in this cafe, "The use of the freehold returned or refulted, by operation of ❝ law, to the covenantor for life, which being conjoined to the "eftate limited to the heirs males of his body, made an estate tail, and that this eftate for life, arifing by operation of law, "was as ftrong as if it had been exprefs.'

Now, if an estate for life, refulting to the covenantor, which was part of the old ufe, and remaining in him, might unite and connect with the limitation in tail in the conveyance, why may not the resulting truft of the freehold, to fupport contingent remainders of a truft, do the fame, though not created together with it? there doth not seem to me to be any greater objection to the one than the other.

My Lord Chief Juftice Hale's expreffion in that case, is directly applicable, that this is plainly according to the intention of the parties, and if we can by any means fupport it, we ought to do it as good expofitors.

But however, as I faid before, I would not be understood to give any pofitive opinion; but it deferves to be better confidered, by reason of it's analogy to the cafe of Pybus and Mitford. Another objection taken for the plaintiff was, that it is imfupport contin poffible to frame fuch an exprefs limitation, as would fupport these contingent remainders: If this was true, it would be very to reftrain it to material: It is fo, as to fome, but not to all; for as to the fons the life of tenant of John Hopkins, to be born hereafter, the limitation, when the land, provided it conveyance is to be made, may be fupported, fo as to the fons of be reftrained to the bodies of fuch daughters as were living at the teftator's the life of a per- death, for I make a great diftinction between that limitation, fon in being.

for life of the

and the limitation to the fons of after-born daughters: As to John Hopkins's after-born fons, it may be limited to trustees and their heirs, till he has a fon born, and fo after his death, till Sarab has a fon born, and to any other of the daughters that were in effe at the teftator's death.

But it has been objected further, that this is a new invented limitation to fupport contingent remainders, and that it was never yet carried further than during the life of tenant for life of the land, or birth of a pofthumous fon, and that to be sure is the common cafe of fettlements; but there have been other limitations, and it is not (in my opinion) material to restrain įt to the life of tenant for life of the land, provided it be reftrained to the life of a person in being.

It has been alfo objected, that all fuch trustees on fuch limitations have hitherto been reftrained to receive the profits for the benefit of the tenant for life, but this would be to create a new truft for the benefit of the heir at law; but this is no more than the common case of a refulting truft, and it is immaterial, whether it be express or implied; for if it be implied by the will, it must be expreffed in the conveyance.

86

refulting truft,

for the heir at

vife.

And fo it was allowed in the case of * Carrick v. Errington, * 9 Mod. 35. 2 Wms. Rep. 361. "Edward Errington had made two fettle- There may be a ments of his estate, one by fine in the life-time of his an- under a truit to ceftor, which (if at all) could only operate by eftoppel; appoint contin"he afterwards made another fettlement to truftees, to the gent remainders "use of himself for life, &c. remainder, &c. and by a con- law, in the fame veyance executed another day, they (to whom the fee was manner as under "limited) executed declaration of truft for Thomas Erring- an executory de"ton for life, without impeachment of wafte, remainder to "trustees to preserve contingent remainders, during the life "of Thomas Errington: In the conveyance were unneceffarily "made trustees to preferve contingent remainders, it being a "truft eftate; Edward Errington died without iffue, and the "whole legal eftate was admitted to be in the trustees: In "the fecond deed they were only trustees of the beneficial "intereft, and Thomas, who was to take the firft eftate in the "truft, was a papift, and difabled by the ftatute to take any

beneficial intereft; and it was infifted that, by the ftatute, "both the trust and legal estate were void, and therefore the "eftate to go over by that conveyance to the next remainderman, who should be a proteftant, and capable of taking.

66

"First question, Whether the deed was obtained by fraud? "Second question, Whether the legal eftate in the trustees "(who were only truftees under the firft deed) was void, be"cause this remainder-man was a papift, and incapable of taking?

"Lord King, and afterwards the Houfe of Lords, held, that "the truft being not only to receive rents, &c. but also to "preferve contingent remainders, and poffibly a perfon capa"ble of taking might come in effe, that that was a further

truft, which the ftatute did not make void; it had indeed "avoided that for life, but as there was another trust upon the "legal eftate, which might, by poffibility, be capable of be❝ing enjoyed, the estate should remain in the trustees, to fup- ~ "port the contingent remainders; and as to the profits in the "mean time (for the remainder-man could not take them, "nor the trustees, they being only mere inftruments) the heir "at law fhould have them, till fome perfon came in effe, capable of taking under the contingent remainders." This, therefore, is a very clear authority, that there may a refulting trust (under a truft to fupport contingent remainders) for the heir at law, in the fame manner, as under an executory devife: Indeed it was infifted in that cafe, that the estate should, in the mean time, go over; but the court held otherwife, for then it would have vefted by purchase, and could. never have come back again.

be

+ See Fearne's Conting. Rem,

and Execut. Dev. 83, 95, 97, 120.

As to the devife of the perfonal estate, if I am right in what I have faid with regard to the real estate, it will hold ftronger as to the perfonal, that it is a clear executory truft, and falls within the reason of the case of † Papillon v. Voice, which is a ftrong authority on that head.

The confequence of the whole is, that the present plaintiff cannot have fuch a conveyance as he prays by his bill, nor the furplus of the profits during the life of William.

But it remains to be confidered, whether he can have any other relief.

1

I think no conveyance ought yet to be made of this estate, but it must remain in the hands of the truftees to see whether John Hopkins, or any of his daughters, will have a son that hall attain the age of 21, for fo long there are trufts to be preferved, and no ceftuique truft till then is to come into posfeffion.

If a conveyance was to be now directed, it would be proper to confider what eftate ought to be limited to the plaintiff; but as I think this is not neceffary, the bill must be difmiffed, but without prejudice as to the plaintiffs applying to the court under the former decree, for a fettlement to be made of the truft eftate, according to the refervation in that decree.

CA P. CIII.

Kent.

(A) In what cafes there may be a remedy foz rent in equity, when none at law.

May the 19th, 1739.

Benfon v. Baldwyn.

where the reme

Cafe 274. Lo ORD Chancellor: Where a man is intitled to a rent out of A bill may be lands, and thro' procefs of time thremedy at law is brought for rent loft, or become very difficult, this court has interfered and in this court, given relief, upon the foundation only of payment of the dy at law is loft, rent for a long time, which bills are called bills founded upon or becomes very the folet: Nay, the court has gone fo far as to give relief, difficult, and this where the nature of the rent (as there are many kinds at law) on the foundation has not been known, so as to be set forth, but then all the of payment for a terre-tenants of the lands, out of which the rent iffues, muft length of time. -be brought before the court, in order for the court to make a

court will relieve

compleat decree.

CAP.

CA P. CIV.

Refulting Tuffs.

Vide title Affets.

Vide title Creditor and Debtor.

Vide title Truft and Trustees, &c.

САР. СУ.

Rule of the Court.

Vide title Money.

CAP CVI,

Scrivener.

April the 2d, 1752.

Ex parte Burchall.

Vide title Bankrupt, under the divifion, The Conftruction of the repealing Claufe in the 10th of Queen Anne.