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A.-G. v. SUTTON [1721]

III BROWN.

in the will, viz. his first and second sons, it was answered, that all the issue male which Thomas Sutton might possibly have, viz. his third, fourth, and every other son and sons, not being expressly provided for by the will, the limitation after his death, without issue male, raised the same estate to him by implication, as if it had been limited to him and his issue male in express words. That by the whole tenor of the will it appeared that the testator intended to devise an estate tail to Thomas; for in the first clause he says, If Thomas refuses to convey, all gifts, etc. to him, and the heirs male of his body, shall be void; and in another part of the will, the testator provides, that Thomas shall not defeat the charities; which, if he had been only tenant for life, it would not have been in his power to have done.

But after hearing counsel on this appeal, and the opinions of the Judges present having been severally delivered, it was ordered and adjudged, that the order complained of in the [78] appeal should be reversed; and that the plea pleaded by the respondents should be over-ruled.^[1] (Jour. vol. 21. p. 636.)

↑ Mr. Peere Williams, in his report of this case (vol. I. p. 765), gives the following account of what passed in the house:

Whereupon, after the withdrawing of the counsel from the bar, all the Lords agreed, that as to the Chequer Inn, wherein the testator Sutton had a legal estate, the recovery was clearly good, and barred the charities; but with regard to the trust estate in the Suffolk lands, and which the will directed should be settled to the same uses as the Chequer inn was devised, some of their Lordships doubted, that there being a direction for the trustee to convey, this gave a handle for a Court of Equity to interpose; and if the Court was to interpose, it was fit and reasonable to help the intention of the party, which was but imperfectly expressed in the will; that this assistance should be given in respect to the remainder limited to the first and second sons of the testator's nephew Thomas Sutton, by ordering an estate to trustees during the life of the nephew, and so to put it out of his power to bar these remainders to the first and second son; that none could blame the doing of this, which was an apparent compliance with the testator's intent; and as the charities were intended to take effect, in case only the nephew should die without issue male, it would be equally just to preserve and assist such intention, by limiting a remainder to every other of the sons of Thomas Sutton, the nephew, as to the trust estate, and then a remainder to the charities. But other Lords differed, being of opinion, that equity, as to limitations of estates, or trusts of estates, ought sequi legem; and that, were it otherwise, it would be highly inconvenient, and occasion the greatest uncertainty, and most precarious determinations of property; particularly, the Lord Harcourt cited the following expression of Mr. Justice Twisden, who, when a matter was pressed on behalf of a charity that he thought to be against law, replied, I like charity well, but will not steal leather to make poor men shoes. However, some of the Law Lords differing in opinion, the Bishops made a majority for reversing the order of the Court of Exchequer, as to the whole, which was thought not to be very mischievous, as the order of that court was but to allow the plea; and consequently, the reversal thereof did only put the respondents to answer, without determining the right any way against them.

The same reporter also subjoins in a note the subsequent history of the cause, as follows:

In consequence of this order, made by the House of Lords, the defendants answered; and on the 29th of January 1732, the cause, by the name of the Attorney-General v. Young, et alia (Paman being then dead) came on in the Exchequer; when the Barons decreed, that the recovery suffered by the testator's nephew Thomas Sutton, of the trust estate, was void, the same being contrary to the trust created by the will of John Sutton; and for that there had not been any conveyance of the said premises to trustees, pursuant to the directions in the said John Sutton's will; and that the defendant should convey to the trustees for the charity, and awarded a perpetual injunction to quiet them in the possession.—With respect to the Chequer Inn, the court retained the information, with liberty for either of the parties to ascertain their title by a trial at law; upon which the Suttons, who claimed under the recovery, brought their ejectment in the Court of Exchequer, which was tried in Hilary vacation 1735, and the jury found a special verdict, viz. the said John Sutton's will, and all facts necessary to bring the matter of law before the court; and in Easter term 1737, the special verdict was argued; in the term following, the court

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[1] Mr. Peere Williams, in his report of this case (vol. I. p. 765), gives the following account of what passed in the house:

Whereupon, after the withdrawing of the counsel from the bar, all the Lords agreed, that as to the Chequer Inn, wherein the testator Sutton had a legal estate, the recovery was clearly good, and barred the charities; but with regard to the trust estate in the Suffolk lands, and which the will directed should be settled to the same uses as the Chequer inn was devised, some of their Lordships doubted, that there being a direction for the trustee to convey, this gave a handle for a Court of Equity to interpose; and if the Court was to interpose, it was fit and reasonable to help the intention of the party, which was but imperfectly expressed in the will; that this assistance should be given in respect to the remainder limited to the first and second sons of the testator's nephew Thomas Sutton, by ordering an estate to trustees during the life of the nephew, and so to put it out of his power to bar these remainders to the first and second son; that none could blame the doing of this, which was an apparent compliance with the testator's intent; and as the charities were intended to take effect, in case only the nephew should die without issue male, it would be equally just to preserve and assist such intention, by limiting a remainder to every other of the sons of Thomas Sutton, the nephew, as to the trust estate, and then a remainder to the charities. But other Lords differed, being of opinion, that equity, as to limitations of estates, or trusts of estates, ought sequi legem; and that, were it otherwise, it would be highly inconvenient, and occasion the greatest uncertainty, and most precarious determinations of property; particularly, the Lord Harcourt cited the following expression of Mr. Justice Twisden, who, when a matter was pressed on behalf of a charity that he thought to be against law, replied, I like charity well, but will not steal leather to make poor men shoes. However, some of the Law Lords differing in opinion, the Bishops made a majority for reversing the order of the Court of Exchequer, as to the whole, which was thought not to be very mischievous, as the order of that court was but to allow the plea; and consequently, the reversal thereof did only put the respondents to answer, without determining the right any way against them.

The same reporter also subjoins in a note the subsequent history of the cause, as follows:

In consequence of this order, made by the House of Lords, the defendants answered; and on the 29th of January 1732, the cause, by the name of the Attorney-General v. Young, et alia (Paman being then dead) came on in the Exchequer; when the Barons decreed, that the recovery suffered by the testator's nephew Thomas Sutton, of the trust estate, was void, the same being contrary to the trust created by the will of John Sutton; and for that there had not been any conveyance of the said premises to trustees, pursuant to the directions in the said John Sutton's will; and that the defendant should convey to the trustees for the charity, and awarded a perpetual injunction to quiet them in the possession.—With respect to the Chequer Inn, the court retained the information, with liberty for either of the parties to ascertain their title by a trial at law; upon which the Suttons, who claimed under the recovery, brought their ejectment in the Court of Exchequer, which was tried in Hilary vacation 1735, and the jury found a special verdict, viz. the said John Sutton's will, and all facts necessary to bring the matter of law before the court; and in Easter term 1737, the special verdict was argued; in the term following, the court

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