Page:The English Reports v1 1900.pdf/1311

any proper provision for his younger children, or for the payment of any debts he might contract: [242] and further charging, that being entitled to such legal and equitable estate tail in the real estates, he was also entitled to have the leasehold estates purchased with the trust monies, absolutely assigned to him, without any limitation over, such leasehold estates being in their nature chattel interests, and incapable of being intailed or settled in so strict a manner as lands of inheritance might be; and that he was further entitled to the goods in Blenheim-house, and diamond sword, and Georges and collar, such specific things being in their nature chattels personal only, and incapable of limitation over; and therefore the bill prayed a full execution of the trusts of the testator's will, so far as the same could be by law; and that the trustees might be decreed to convey and settle all the freehold and leasehold estates devised by the testator, or since purchased with his residuary personal estate, according to the true and legal import and construction of his will; and so as that the respondent the Duke might be rendered tenant in tail male of the said freehold estates; and that the leaseholds might be absolutely vested in him, without any power of revocation, or other condition to defeat the estates to be to him limited; and that the remaining personal estate might be immediately invested and settled in like manner; and that the goods at Blenheim-house, and the other specific things, might be also delivered to him as his own property, without security or condition.

The appellants Lord Charles and Lord Robert Spencer, being both infants, put in their answer by their guardians; and submitted whether the trustees ought not, in pursuance of the power and direction contained in the will, to revoke the several uses thereby limited of the estates of which the testator died seised, and to settle the same, together with the several real estates, purchased and to be purchased, in such manner as that the Duke, their elder brother, should be made tenant for life only; with remainder to the use of trustees and their heirs during his life, to preserve the contingent remainders, and after his decease to the first and other sons of his body in tail male; with like remainders to the appellants one after the other, and after their deaths, to their first and other sons in tail male successively; and in default of such issue, to such of the uses directed to be limited by the said will as were capable of taking effect: and whether the trustees ought not to be directed, upon the birth of any other son of the body of any of the persons to whom an estate for life was limited by the will, to revoke all the uses and estates that should be then in being, and to make new settlements as often as any such other son should be born: and whether in every settlement to be executed by the trustees, there ought not to be contained the same power and direction to the trustees for the time being, to revoke the uses and estates that should be then existing, and to settle the same in the manner directed by the will. And they further submitted, whether the respondent the Duke was not likewise, by virtue of the will, and according to the intent thereof, to be considered as entitled only to the use during his life, of the goods and furniture in [243] Blenheim-house, and of the gold plate, diamond sword, Georges and collar; and whether the same ought not to be settled and assigned accordingly, with such power of revocation and re-settlement as in the will mentioned, or in what other manner the said estates, real and personal, and specific things, ought to be enjoyed and settled. And being infants, they submitted their interest in the testator's estates real and personal, to the care of the court.

The appellants, Lord Viscount Spencer, and George Spencer his infant son, by their answer also insisted, that the respondent the Duke ought not to be considered as tenant in tail male, but that the trustees ought to execute the power of revocation and re-settlement vested in them by the will.

The respondents the Duke of Bedford, Earl Godolphin, and Lord Fane, by their answer prayed the direction of the court, in respect to their executing or not executing the powers given to them by the will; and submitted to act in their trust as the court should direct.

This last clause, together with the question reserved by the former decretal order, came on to be heard before the Lord Chancellor Northington, on the 16th of November 1759; when his Lordship declared, that the clause of revocation and re-settlement in the will, as tending to a perpetuity, and repugnant to the estate limited, was void and of no effect: and decreed, that the surviving trustee and new added trustees should, with the Master's approbation, convey all the lands or hereditaments, whereof they or any of