Page:The English Reports v1 1900.pdf/1187

spondent, after the decease of the appellant and Thomas Wightwicke, without heirs of their bodies lawfully begotten, ought to be deemed a void limitation, both in law and equity, as tending to a perpetuity, and preventing the estate from being, by any means, alienated; for though the original estate was only for three lives, yet, it being the mutual interest of landlord and tenant, that such leases should from time to time be renewable, and being renewed, must continue under the same trust; the estate might, by possibility, continue for ever; and consequently, the intail thereof would never be liable to be barred. That no contingent remainder in the limitation of a term can be good, unless it springs within the compass of the lives of persons in being; but there wore no words in the limitation of this intail, which determined the same during the lives of any persons in being; and therefore it was hoped, that the remainder to the respondent would not be allowed.

On the other side, it was contended (E. Northey, S. Cowper) to be the plain and evident intention of the testator, that if either the appellant, or Wightwicke, should die without heirs of their bodies, the share of such person so dying without issue, should come to the respondent. And in support of his title it was insisted, that no estate vested in Wightwicke on the testator's death, but only a possibility to hold a moiety of the premises, so long as he should have heirs of his body, if the lease should continue after the death of Mrs. Hovell and Margaret Sandys, and the debts were paid; but if the three lives should determine before the death of Mrs. Hovell and Mrs. Sandys, and payment of the debts, then Wightwicke could take nothing; and therefore, that which vested in him was nothing more than a bare possibility, and was determined by his dying without issue; so that his conveyance to the appellant could have [52] no effect or operation at all. That the estate devised being a freehold for three lives, the devise to the respondent, although after a failure of issue of the appellant, or Mr. Wightwicke, was good as a designation of the special occupant who was to take, in default of the special occupants before named, viz. the several heirs of the bodies of the appellant and Wightwicke. And though it should be admitted, that the possibility which vested in Thomas Wightwicke did, in equity, pass by his grant to the appellant; yet, upon Wightwicke's dying without issue, his interest or possibility was determined, and the respondent was entitled to his moiety, as the next special occupant named in the devise, subject to the debts and annuities charged thereon by the testator's will.

After hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and that so much of the decree as was therein complained of, should be affirmed. (Jour. vol. 19. p. 674.)

The late Lord Chief Baron Mountague was, in his lifetime, seised of a considerable real estate, of the value of £2400 per ann. and upwards, which consisted of Sudborough Park, in the county of Northampton, several houses in Little Britain, London, the manor of Croft, and Wilson's Marsh, in the county of Lincoln, several other lands