died, having made his will, and appointed Richard Arundel and H. Perkins his executors; and letters of administration of the personal estate of Thomas Pelham the infant, were also granted to the said R. Arundel. William Vane had issue two sons, Christopher the eldest, who died an infant without issue, and William his second son. This William, who became Lord Vane, took out letters of administration to his brother Christopher, and thereby became entitled to all such interest in the leasehold premises as vested in his brother Christopher, who was the first person in esse, in point of time, who took any estate of inheritance in the freehold premises. Arundel and Perkins filed their bill against Lord Vane and others, stating the above facts, and that they, as executors of the said Henry Pelham, and as administrators of the personal estate of Thomas Pelham, the infant son of Henry Pelham, were become entitled to the absolute interest in the leasehold terms, subject to the life estate of Thomas Duke of Newcastle, and the contingency of his having a son born alive; and being so entitled, they had entered into an agreement with George Gregory for the sale of those terms, and prayed that the agreement might be performed specifically, and carried into execution. Lord Vane put in his answer, insisting that his brother Christopher was the first person, in point of time, in esse, who took any estate of inheritance in the premises; and that he dying an infant and without issue, Lord Vane, as the only son and surviving heir of his father William Vane, became the first person in esse who took an estate of inheritance in any of the premises, by virtue of the limitations in the will; and denied that the absolute estate and interest in the leaseholds ever vested in Thomas Pelham. The cause was heard before Lord Keeper Henley, who dismised the bill. On an appeal to the House of Lords, the following questions were put to the Judges:-1°. Whether the property of the leasehold estates for years, devised by the will of the Duke of Newcastle, vested in Thomas Pelham the infant son of Henry Pelham deceased, subject to the Duke of Newcastle's interest therein for his life, and to the contingency of the Duke's having a son? 2o: Whether the property of the said leasehold estates, subject as aforesaid, was transmitted to the representatives of the said Thomas Pelham the infant? The Lord Ch. Baron of the Exchequer and Mr. Justice Denison being present, the Lord Ch. Baron delivered their concurrent opinion upon the said two questions in the affirmative. Whereupon it was ordered that the decree should be reversed; and that the leasehold estates for years devised by the will of the late Duke of Newcastle, subject to the then present Duke's interest therein for his life, and defeasi ble by the said Duke's having a son, belonged to the appellants, as standing in the place of the said Thomas Pelham, the infant son of Henry Pelham deceased; and that the agreement entered into between them and George Gregory, for the sale of them, ought to be carried into execution. 14. To remedy this inconvenience, it has been the practice of conveyancers, since the time of Sir Orlando Bridgeman, to insert a clause in the deed, declaring, that if the first son shall die without issue, under the age of 21 years, the term for years shall vest in the second son; subject to the same proviso in favour of all the other sons. And the validity of this mode of limitation was established by Lord Keeper North, in Vide Foley v. Burnell, 4 Bro. Parl. Ca. 319. conformity to the opinion of the Judges of the Court of C. P., as being within the period allowed for the vesting of an executory estate, in the case of MassenTit. 38. c. 19. burg v. Ash, and several other cases, which will be stated in a subsequent title. 2 P. Wms. 689. Gower v. Newcastle v. 3 Ves. 387. 15. In the case of Stanley v. Leigh, Sir J. Jekyll said, he had informed himself of the common course of settling terms for years, and found it usual in marriage settlements to limit them thus: To trustees for the whole term, in trust to permit the husband and wife, and the survivor, to receive the rents and profits during so long of the term as they should live; and after the death of the survivor, to permit the first son of the marriage to receive the rents and profits till he attained 21; and if he attained that age, then the trustees to assign the residue of the term to him but if such first son died under 21, then in trust for the second and other sons, in like manner. 16. In a settlement, by which freehold estates were limited to the husband for life, with remainder to his first and other sons in tail; a covenant was inserted to assign terms for years to trustees, for such persons, estates, intents and purposes, as were mentioned concerning the freeholds, or as far as the law would in that case allow or permit. And the Court of Chancery directed such terms for years to be limited in the manner above mentioned. 17. Upon the marriage of Henry Earl of Lincoln in 1772, he joined his father, Henry Duke of Newcastle, in settling several freehold manors, &c. to the use of the Duke for life, remainder to Lord Lincoln for life, remainder to his first and other sons in tail male, remainder to his next brother Lord Thomas Clinton for life, remainder to his first and other sons in tail male, remainder to Lord John Clinton in the same manner. And the Duke covenanted that he would assign to the trustees of the settlement the manor of Newark, which he held by a lease for years from the Crown; to hold the same in trust for, and for the benefit of such person and persons, and for such or the like estate or estates, and for such and the like ends, intents, and purposes, as were therein-before mentioned of and concerning the said manors, &c. thereby granted and released, as far as the law would in that case allow or permit. Henry Earl of Lincoln died in the lifetime of his father, leaving a son and a daughter; and the son died an infant in the lifetime of the Duke of Newcastle, who never executed any assignment of the leaseholds, pursuant to the covenant. On the death of Henry Duke of Newcastle, Lord Thomas Clinton succeeded him, and died in 1795, leaving Henry his eldest son, and Thomas his second son, infants who filed their bill against Lady Lincoln, the widow of Henry Earl of Lincoln, who had taken out administration to her infant son; stating, that Lady Lincoln had been permitted to take possession of the said manor of Newark; and praying that the settlement made on the marriage of Lord Lincoln, as far as respected the performance of the covenant to convey the leasehold premises, might be established, and carried into execution; and that it might be referred to one of the Masters to settle a proper conveyance of the same; and that such a clause might be inserted therein, as should prevent the absolute vesting of the said leasehold property, until the persons successively entitled to the possession of the same should have attained the age of 21 years. To this bill Lady Lincoln put in her answer, and thereby insisted that the infant son of Lord Lin coln, having survived his father, became entitled to the said leasehold premises, for his own use and benefit; and that, in consequence of his death, and by virtue of the statute of distributions, Lady Lincoln and her daughter became entitled to the said leaseholds. The case having been fully argued, Lord Loughborough said, the question arose upon the leasehold property at Newark, which, by the articles made upon the marriage, was to be settled in the same manner as the freehold estates, as far as the rules of law would admit. He meant to be extremely short in stating his opinion, which was decidedly that in cases of marriage articles, where leasehold property was to be subject to a settlement of freehold estates, and the limitations of the freehold went to all the sons in succession, the settlement to be made of the leasehold was to be analogous to that of the freehold; so that no child born, and not attaining the age of 21, should, by his birth, acquire a vested interest, to transmit it to his representatives, and thereby defeat the ulterior objects of the articles; which were not decidedly in favour of one son, but equally extended to every son: and that he took, from all the course of the cases, to be the settled rule and established practice. He therefore directed a clause to be inserted in the settlement, that no person should be entitled to the absolute property unless he should attain to the age of 21 years, or die under that age, leaving issue male. On an appeal to the House of Lords, this decree was affirmed, after a long discussion, of which Mr. 12 Ves. 217. Vesey has given a full account. Alienation may be re 18. In consequence of the general admission of strained dur- these modes of settling estates, it became fully esta |