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respective times when it ought to have been executed; that is, from the births of the several sons of the respective nominees.

On behalf of the respondent the Duke of Marlborough it was contended (C. Yorke, G. Perrot, E.  Willes), that in the ordinary course of family settlements nothing less than an estate tail is limited to persons not in esse. It has been hitherto understood to be the only method of carrying on successive remainders of inheritance, by way of strict settlement, in the families of successive tenants for life, consistently with the rules of law. For if the grantor should, after the first vested estate of freehold, limit a contingent estate or use for life to a person unborn, and then follow it with contingent remainders in tail to the sons or children of such unborn tenant for life, such contingent limitations of the inheritance would be void. This arises from the policy of the law against perpetuities, that the vesting of the inheritance or ownership may not be suspended beyond the compass of a life or lives in being, or beyond the age of 21 of the first unborn tenant in tail, during whose infancy the law itself will restrain his power of alienation. That whoever has a vested estate of inheritance in land, is the absolute owner; whether he is tenant in fee-simple, or tenant in tail; it being equally contrary to the rules of law, to prohibit either from exercising the powers of alienation incident to his estate. Conditions to restrain these powers generally are void, as being repugnant to the estate limited; and it is admitted, that by the direct legal limitations in a deed, or devises in a will, the grantor or testator cannot limit an estate tail to a person unborn and the heirs of his body, and immediately upon the event of his birth, direct it to cease as to such tenant in tail, and continue as to his issue. If the law is undoubted, equity must follow it, that the same substantial rules of property may be observed by both jurisdictions. And as the law will not allow the testator, by direct limitations, to turn a contingent remainder-man in tail, into a tenant for life, at the very instant of time when the estate tail would vest, with its incident right of alienation; so neither will equity allow him, by way of power of revocation, or rather by way of imperative trust, to enable trustees as his instruments, to convert the tenant in tail after his birth, into a tenant for life; which change the author of the trust himself could not effectuate by any proper legal limitations originally inserted in his will. Quodcunque prohibetur fieri ex directo, prohibetur et per obliquum. That if the power given to the trustees, to revoke the uses upon the birth of the respondent, was allowed to be good, it would have been equally so had it extended to all future generations, and made the [246] estate for ever unalienable, which would be hardly contended. The testator most clearly intended a perpetuity, and openly avowed his design: with this view he kept the different acts of parliament constantly before him, both in his will, and deed of 1712, adopting the same form of expression, with the salvo of, as far as may be by law. And being still conscious, that the ingenuity of his lawyers, however skilful, could not keep pace with the legislative authority, he requested the sanction of parliament, to the settlement of his estates pursuant to his will, and according to his intentions expressed therein, so that the same might be unalienable as the honour and manor of Woodstock. Lastly, that the gold, plate, etc., being chattels, became absolutely vested in the respondent upon his birth, subject to the late Duke's interest in them for life; and if the respondent had lived but one hour after he was born, they would have gone to his father as his administrator. The decree therefore, ordering them to be assigned and delivered to the respondent, was just and right.

After hearing counsel on this appeal, the Judges were ordered to deliver their opinions to the House upon the following question; viz.

Whether by the rules of law, an estate tail limited to the use of persons unborn, by any deed or will, can, by virtue of any power given by such deed or will to trustees, be revoked upon the births of such persons, and a new estate limited to such persons for their lives respectively, with remainders to the issue of such persons successively in tail male?

And the Lord Chief Justice of the Common Pleas having delivered the unanimous opinion of the Judges in the negative, it was thereupon ordered and adjudged, that the appeal should be dismissed, and the decree therein complained of, affirmed. (Jour. vol. 30. p. 327.)