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Montgomery, to Trustees and their Heirs, to the Use of Richard Carew for Life, then to Penelope for Life for her Jointure, then to the said Trustees and their Heirs, during the Lives of Richard and Penelope, to preserve contingent Remainders; then to the first and other Sons of Richard and Penelope in Tail Male successively; and in Default of Issue Male, to the Daughters of Richard and Penelope in Tail; and in Default of such Issue, as to one Moiety of the said two Parts, to the first and other Sons of the said Penelope by any other Husband in Tail, the Remainder of all and singular the Premisses to the said Richard Carew and his Heirs for ever, subject to this Proviso, That if it should happen that no Issue of the said Richard, upon the Body of the said Penelope, should be living at the Decease of the Survivor of them, and the Heirs of the said Penelope should within twelve Months after the Decease of the Survivor of the said Richard and Penelope dying without Issue as aforesaid, pay to the Heirs or Assigns of the said Richard Carew the Sum of 4000l. that then the Remainder in Fee-simple so limited to the said Richard Carew and his Heirs should cease; and that then, and from thenceforth, the Premisses should remain to the Use of the right Heirs of the said Penelope for ever.

After this Mary intermarried with the Appellant Sir Evan Lloyd, and a Partition was made of the Premisses, and the same had been enjoyed accordingly ever since, and Mr. Carew and his Lady levied a Fine to Mr. Godolphin and his Lady of his Part; who did [138] thereupon by their Deed dated 23 Sept. 1676. covenant to levy a Fine of Mr. Carew's two Parts to such Uses as he and his Lady should limit and appoint, but have not yet levied the said Fine.

Richard Carew and Penelope his Wife, to avoid all Controversy that might happen, whereby the Estate of the said Richard Carew, or his Heirs, might be question'd or incumbred by the Heirs of Penelope; and to the End to extinguish and destroy and bar all such Estate, Right, Title, Equitable or other Interest, as the said Penelope then had, or her Issue and Heirs might have or claim to the same, by any Power, Settlement or Condition, on Payment of 4000l. or otherwise to the Heirs of Richard Carew by the Heirs of the said Penelope; and for the settling of the same on the said Richard Carew and his Heirs, did in Michaelmas Term 1681. levy a Fine of the Share and Part allotted to them, and by Deed of Decemb. 1681. declare that the said Fine should be to the Use of the said Richard for Life, Remainder to Penelope for Life, the Remainder to the said Richard Carew his Heirs and Assigns for ever: And do further declare, That the Fine agreed to be levied by the Appellants Sidney Godolphin and Susan his Wife, by their Deed dated the 23 Sept. 1676. should be to the same Uses, and then direct the Trustees by the first Settlement to convey to those Uses.

Penelope died without Issue in 1690. Richard Carew made his Will in Aug. 1691. and devised the said Lands to Sir John Carew Bar. his Brother, subject to pay all his Debts and Legacies, and made Sir John Carew his Executor.

In Decemb. 1691. Richard Carew died without Issue, and Sir John Carew entred, and was seised and possessed of the Premisses, and paid 4855l. for the Debts of Richard Carew.

Sir John Carew died, and the Respondent, Sir Richard Carew an Infant, is his Son, Heir and Executor.

The Appellants, Mary and Susan, claiming the Lands as Heirs to Penelope by Virtue of the said Proviso in the first Settlement upon Payment of the 4000l. exhibited their Bill in Chancery to compel the Trustees to convey the Estate to them upon such Payment.

Bill dismissed below.—Upon hearing of this Cause on Bill and Answer, the Court ordered a State of the Case to be drawn, which was as above; and afterwards the Court, assisted by the Chief Justice of the Common Pleas, and Mr. Justice Rooksby, seeing no Cause to relieve the Plaintiffs dismissed their Bill.

Argument for the Appellants. No Danger of a Perpetuity.—And now it was argued on Behalf of the Appellants, That such Dismission ought to be set aside; and amongst other Things, it was insisted on in Favour of the Appeal, that this Proviso was not void; that it was within the Reason of the Contingent Limitations allowed by the late Lord Chancellor Nottingham in the Case of the Duke of Norfolk, and there were quoted several Paragraphs in the Argument made by the said Lord Chancellor, as [139] that future Interests, springing Trusts, or Trusts Executory,