Page:The English Reports v1 1900.pdf/1307

several annuities since determined; to the use of Harriot then Countess Godolphin, afterwards Duchess of Marlborough, wife of the respondent Earl Godolphin, for life, sans waste; remainder to the Dukes of Montagu and Bridgewater, and their heirs, in trust to preserve the contingent remainders; and after her decease (in case the respondent Earl Godolphin should survive her, and should not be entitled, as tenant by the courtesy, to the pension of £5000 per ann. settled by the act of the 5th of Queen Ann, on the testator's posterity, and to which the Earl did not become entitled) then to the intent that the said respondent, during his life, should receive thereout an annuity of £5000 free from taxes: and after the decease of Harriot Countess Godolphin, (subject to such annuity,) to the use of William Godolphin, Esq. called Lord Ryalton, son and heir apparent of the said Earl and Countess for life, sans waste; remainder to the same trustees to preserve the contingent remainders; remainder to the first and other sons of Lord Ryalton in tail male; remainder to all other the son and sons of Harriot Countess Godolphin, successively in tail male; remainder to Robert Spencer, Esq. called Lord Robert Spencer, (eldest son of Ann late Countess of Sunderland, the testator's second daughter,) for life, sans waste; remainder to trustees to preserve the contingent remainders, with [236] remainder to his first and other sons in tail male, (but which uses never vested, as he died in the lifetime of the Countess Godolphin, without issue;) remainder to Charles Spencer (afterwards Earl of Sunderland, and since Duke of Marlborough, second son of the said Ann Countess of Sunderland, and father of the appellants Lord Charles and Lord Robert Spencer, and of the respondent George Duke of Marlborough) for his life, without impeachment of waste; remainder to trustees to preserve the contingent remainders; remainder to the first and other sons of the said Charles Spencer in tail male.

But to this last limitation, as well as the preceding one to Lord Robert Spencer, a condition was annexed, that if the testator should die without issue male, and the Countess Godolphin and Lord Ryalton and Lord Robert Spencer should also die without issue male, whereby the said Charles Spencer, or, in case of his death, one of his sons, should be seised of the premises in possession; that if the said Charles Spencer, or such of his sons who should be first seised in possession of the premises, being of full age, should not within six months convey to the use of John Spencer (third son of the said Ann Countess of Sunderland, and father of the appellant John Lord Viscount Spencer) and the heirs male of his body, if then living, (Charles Earl of Sunderland being then dead, and if not, then within three months after his decease), all the manors, lands, and hereditaments settled upon the sons of the said Charles Earl of Sunderland and Ann Countess of Sunderland, deceased, successively in remainder in tail male, upon their marriage, by an indenture dated the 27th of October 1699; that then the uses limited to the said Charles Spencer, and the trustees for his life, and to his sons in tail male, should determine and be void; and for default of such issue male of the said Charles Spencer, or upon the determination of the precedent estates, by virtue of the proviso before mentioned, which of them should first happen, to the use of the said John Spencer for life, sans waste; remainder to trustees to preserve contingent remainders; remainder to his first and other sous in tail; with several remainders over, to the testator's other children and grandchildren therein named. And then follows this clause:

And for default of such issue, to all and every other the issue male and female, lineally descending of or from me, in such manner, and for such estate, as the same are herein before declared and limited to the before-mentioned issue of me; it being my intention, that the said premises shall continue, remain, and be vested in all issue of me, so long as any issue male or female shall be, to be held or enjoyed by them severally and successively in manner and form aforesaid; the elder, and the descendants of every such elder issue, to be preferred before the younger of such issue, as long as by the laws of the realm it may be.

And for want of such issue, to the use of the testator's right heirs for ever.

[237] And in the said will was contained the following clause; viz.

And I do hereby impower and direct my trustees, the said Sarah Duchess of Marlborough, John Duke of Montagu, Scroope Duke of Bridgewater, Francis Karl Godolphin, William Clayton, William Guidott, and John Hanbury, and the survivors and survivor of them, and the heirs and assigns of such survivor, on the birth of each and every son hereafter to be born of the said Lord Ryalton, and also of the said