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them, before the death of the said John Duke of Marlborough, were seised in trust for him, and also such as since his decease had been or should be purchased with the Master's approbation, pursuant to the directions of the former decree, to the respondent the Duke of Marlborough in tail male, with remainders over; and subject to such powers, provisoes, conditions, and restrictions, as were consistent with an estate tail, pursuant to the testator's will. And as to the furniture, pictures, hangings, beds, and all other the household goods in Blenheim-house, and the gold plate with the Elector of Hanover's arms engraved thereon, and the diamond sword, and Georges and collar, his Lordship declared he was of opinion, that the same were become the absolute property of the respondent the Duke, and ordered that he should be at liberty to apply to have the same delivered to him, when he should attain 21.

In obedience to this decree, the respondents the Duke of Bedford, Earl Godolphin, and Lord Fane, with the Master's approbation, by lease and release of the 18th and 19th of January 1760, settled and conveyed all the estates which had been purchased with the residuary personal estate, and were then vested in them, (subject to the annuity of £5000 per ann. to the respondent Earl Godolphin for his life,) to the respondent the Duke, and the heirs male of his body, with remainders over. But some part of the trust estates, which were limited in jointure to the [244] Marchioness of Blandford, not being comprehended in the general settlement, they were afterwards conveyed by the trustees, with her ladyship's concurrence, by a further settlement of the 5th and 6th of May 1760, in like manner, to the use of the respondent the Duke, and the heirs male of his body, with remainders over.

In further pursuance of the decree, the trustees proceeded to invest the testator's remaining personal estate in purchases; and the whole thereof having been realized, the estates purchased therewith were, by different settlements in the same year, (as the respective purchases were made,) also settled and conveyed, with the Master's approbation, to the use of the respondent the Duke, and the heirs male of his body, with remainders over. And in order that he might be capable of making proper provisions for younger children when he should marry, he proceeded to suffer recoveries of all the settled estates, and declared the uses thereof to himself in fee.

But notwithstanding these proceedings, the appellants thought proper to appeal from the decree; and on their behalf it was argued (T. Sewell, W. de Grey), that the same policy of the law which will not permit estates to be fixed unalienably in one family for ever, will support and protect the means of preserving them till they come to that point at which the mischiefs of a perpetual restraint may commence; the one being as necessary an incitement to industry, and as useful as the other. This point however is difficult to fix. It has not yet been fixed by any legislative or judicial act, or authority. It has indeed been determined, that estates may be made unalienable for the duration of any number of lives in being, and for 21 years beyond, and in some instances still farther; but no judicial determination has said, what are the precise bounds which shall in no instance, nor by any means, he exceeded. The particular mode of the conveyance, though it may be new, or according to the expression in the law books, of the tendency of a limitation to a perpetuity, is not sufficient to render such conveyance or limitation void. The interposition of trustees to support contingent remainders, is an invention introduced about a century ago; an invention which tended greatly to suspend and restrain the powers of alienation, and yet it is now become the established mode of settlement; every limitation of estates, and every restraint of alienation, has a proportionable tendency in some sense to a perpetuity. That if the means made use of in this will, to make part of the Duke of Marlborough's estate accompany the honours and estates fixed in his Grace's family, for one succession beyond the common limitations, were regular and according to the course of law, they seemed to introduce no danger of a perpetuity; since the restraint would not go beyond the sons of the several noble persons named in the will, and the immediate descendants of such sons would be tenants in tail, and have a power of alienation. That if the trustees had executed this power, upon the birth of the appellants and the respondent the Duke, it [245] was apprehended that a Court of Equity would not have interposed to impeach it; and if after an execution of the power, the limitations being to persons in esse, though for life only, would have been supported, the neglect of the trustees ought not in equity to prejudice the infant cestuique trusts; but it being a power which the trustees were enjoined to execute, the court should consider it as executed, from the