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(though if he had any title, it could only be to a moiety of the promises, as Stephen Beckingham the elder was still living,) there was no proof, nor did it appear by any of the deeds set forth in the pleadings, that Sir Edward Brett, or any person in trust for him, at the time of making his will, either had, or was entitled to any greater estate in the premises, than only for the remainder of the mortgage term of 1000 years; neither was there any evidence that the heirs of Sir John Wroth were under [147] any obligation to release the equity of redemption of the premises, or to convey the inheritance thereof to Sir Edward Brett and his heirs. That though Brewster, in the assignment of January 1672, to Richard Watson, in trust for Sir Edward Brett, had covenanted, that all persons claiming under Sir John Wroth should, within seven years, do any further act for assuring the premises to Watson for the remainder of the term; yet that covenant would not bind the heirs of Sir John Wroths, nor could it extend to the inheritance, but was only for better assuring the premises for the residue of the term: and the testator's being deceived by Brewster, who covenanted for what was not in his power, could not give Sir Edward Brett a title to the inheritance, either in law or equity and therefore, though Sir Edward took upon him to devise the inheritance, yet he had no right to do so, nor could the inheritance pass by his will; he having no legal or equitable estate or interest therein, and consequently the appellant could have no title thereto. As to the term of 1000 years, it appeared very plainly by Sir Edward Brett's will, that he had no intention to devise it as a term in gross; he having expressly directed, that the remainder of the lease for 1000 years should be attendant upon the inheritance of the premises, according to the limitations in his will; and those limitations were such, as were proper only for an estate of inheritance, and not for a term of years. And as he did not intend to devise the term, as a term in gross, but only to devise the inheritance, which he had not, so neither could he entail the term in such manner as he had limited the premises by his will, if he had been minded so to do; because such limitation of a term tended to create a perpetuity; and the limitation to the heirs of Watson and Beckingham, after failure of issue male of John Brett Fisher and his two brothers, was void in its creation, and was such an executory devise as could never take place by the rules of law. That though, in fact, Henry Fisher left no other sons than John Brett Fisher and his brothers, and that they all died without issue, yet that would make no alteration in the case; for the will must be construed as things stood at the time of making it, without regard to any future event. Besides, the testator's intention was plain, that the limitation over was to take place upon failure of issue generally, be it when it would, and not upon failure of issue within such a reasonable time as the law allows of; for he entailed the estate by proper and technical words, under an apprehension of his having a power over the inheritance, and of limiting a remainder after the estates tail should be determined; and if the limitation to the heirs of Watson and Beckingham was not good when the will was made, nothing which had happened since could make it good.

After hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and the decree therein complained of, affirmed. (Journ. vol. 24. p. 631.)

John Duke of Buckinghamshire, in his life-time, made his will, (all of his own hand-writing,) dated the 9th of August 1716; and thereby, amongst other things, gave and devised to the Right Honourable Charles Earl of Orrery, George Lord Willoughby de Brooke, Thomas Lord Trevor, and to the respondents Allen Lord Bathurst and Patrick Garden, their heirs, executors, and assigns respectively, all his manors and lord-