Page:The English Reports v1 1900.pdf/1176

want of particular estates to support them; but as the testator himself was not positive they were good, so he intended to leave them to the determination of the law, when there should be a proper occasion, and to let them stand or fall, by legal rules; and therefore, it was conceived to be unjust, for a Court of Equity, in directing a conveyance to be executed by trustees, which was only a collateral matter, to attempt the omission of some estates, and the creation of others, to make good these new-invented contingencies and limitations, and to prevent the legal determination of their validity.

On the other side it was contended (T. Powys, R. Eyre), that the decree complained of, was perfectly right and just, and that a conveyance conformable thereto, was most agreeable to the will and act of parliament. For that Sir John Maynard did not intend his will for a conveyance, but only as directions for a strict settlement; and that his real estates should be conveyed in such manner, as that they might be sure to go to such persons, and for such estates, as he had by his will appointed; and for this reason he directed his trustees to convey, by advice of counsel, and to the use of, or in trust for Sir Henry Hobart and Elizabeth Hobart, for their lives, with remainders over; thereby giving his trustees a latitude either of vesting a legal estate, or conveying a trust, as might best consist with the law, and serve the intent of the testator, when such conveyance should be executed, which he designed should not be done till after the death of his wife, during which time, sons might happen to be born. That in cases of executory articles for the settling of estates, in prospect of future conveyances to be afterwards made, it was usual for Courts of Equity to help informalities, and supply defects; especially when the things supplied were necessary to support the main intent of the parties, and to carry such articles into execution, according to that intent, so far as it might agree with law, though not strictly according to the words and penning of the articles; and à fortiori, would Courts of [36] Equity do so in the case of a will, where the same was only executory by a conveyance to be made. That the plain intent of the testator was, that the manors of Clifton and Hardmead, which by the will were limited to the respondent for ninety-nine years, if he should so long live, should go to the issue male of his body, before the remainder limited to the Countess of Stamford should take place in her, and her issue male; and in like manner, that the Devonshire, Lincolnshire, and Middlesex estates, which were limited to the Countess, should go to her issue male, before the remainder thereof, limited to the respondent, should take place in him and his issue male; and this intent was not only well pursued by the decree, but could not be supported by a conveyance made in any other manner, than as thereby directed. For by a conveyance made pursuant to the draft allowed by the Master, and contended for by the appellants, the issue male of Sir John Hobart would be totally defeated of that part of the estate which was allotted to them, and the same would immediately, upon the death of their father, come to the Earl and Countess of Stamford; because, at the instant of executing such a conveyance, the contingent remainders intended by the will for Sir John's issue male would be entirely void, for want of a freehold to support them; and therefore, such an estate was always inserted in conveyances, for the sole purpose of supporting these contingent remainders, although a freehold so limited to trustees is only artificial, and mere matter of form, to make the conveyance good. Besides, immediately after executing such a conveyance as was contended for on the other side, it would be in the power of Lord Stamford alone, by fine, feoffment, or other conveyance, to destroy the contingent estates and interests in the whole real estate limited by the will to the issue male of the Countess; and likewise the contingent estates and interests thereby also limited in the Devonshire, Lincolnshire, and Middlesex estates, to the issue male of the respondent, which is utterly repugnant to the whole intent and design of the will. That the act of parliament made no alteration in the will, as to the point in question; it only hastened the time for the trustees to convey, even in the lifetime of the Countess of Suffolk, and in some other particulars not relative to the question; but in all other respects the act confirmed the will; and being strictly relative to it, the intent of the will ought to be the rule for the conveyance.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and the decree therein complained of, affirmed. (Jour. vol. 19. p. 134.)