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the said annuity or yearly sum, unto the said Charles Lord Halifax, John Lord Somers, Edmund Dummer, and Thomas Dummer, their executors and administrators, for and during the residue and remainder of such term or terms, estate or estates as I have therein, upon the trusts following; viz. In trust for my said grandson John, commonly called Lord Montagu, for so many years as he shall live; and from and after his decease, in trust for such person as at the time of the death of my said grandson, shall be the heir male of his body, to take lands of inheritance from him by course of descent, for the residue of the same terms and estates; and in case there shall be no such person, that shall be such heir male, then in trust for such person as shall be the heir male of the body of my said son John, commonly called Lord Marquis of Monthermer, to take lands of inheritance from him by course of descent, for the residue of the same terms and estates; and in case there shall be no such person that shall be such heir male, then in trust for my said son John, for and during so many years as be shall live; and from and after his decease, in trust from time to time for such person and persons as shall be entitled, by virtue of this my will, to the rents, issues, and profits of my real estate hereby devised, according to the several estates thereof hereby limited and devised.

Then follows this proviso or condition, viz.

Provided, and my will is, and I do hereby declare, that all and every the estate and estates, trust and trusts herein before given, devised, limited, or declared unto or in trust for my said son John, commonly called Lord Marquis of Monthermer, are upon this condition and under this limitation following, viz. That in case he my said son shall not within 12 calendar months next after my decease, if he shall be of the age of 21 years at the time of my decease, or otherwise within 12 calendar months after he shall attain to the said age of 21 years after my death, well and sufficiently suffer a common recovery, in due form of law, of all such manors, lordships, messuages, farms, lands, tenements, and hereditaments in the county of Warwick, whereof [279] he shall be seised of the immediate freehold and inheritance in tail, and shall not by deed under his hand and seal, before or within three calendar months next after such, common recovery, declare the same recovery to be to the use of himself for life, without impeachment of waste, and after the determination of that estate, to the use of the said Mark Antonie, and John Warner, or unto the survivor of them and of their heirs, or the heirs of such survivor, during the life of him my said son; or in case of the deaths both of the said Mark Antonie, and John Warner, then to the use of two other persons and their heirs during the life of my said son, upon trust for preserving contingent remainders; and after his decease, to the use of my said grandson John Montagu, Esq. commonly called Lord Montagu, for and during the term of his natural life, without impeachment of waste; and after the determination of that estate, to the use of two trustees and their heirs, during the life of my said grandson, upon trust for the preservation of contingent remainders; and after the death of my said grandson, to the use of all and every the son and sons of my said grandson, lawfully to be begotten, severally and successively in tail male; and for default of such issue, to the use of all and every other the son and sons of my said son Lord Marquis of Monthermer, lawfully begotten or to be begotten, severally and successively in tail male; and for default of such issue, to such uses as my real estate is hereby given and devised. But if my said son shall neglect or refuse to suffer such common recovery, and to make such declaration of the uses thereof, within such time and in such manner as aforesaid, then my will is, that the gift and devise of my real estate to my said son shall cease and be void; and then and in such case of such neglect or refusal, my real estate shall remain and go over in such manner, according to the limitations thereof herein before made, as if my said son was really dead; and then and in such case of such neglect or refusal I will that all the rest and residue of my personal estate, herein before given to my executors in trust for my said son, shall be sold, as if he had died before his age of 22 years, and the monies arising by such sale shall be laid out in a purchase, to be settled as before is directed, omitting the use and estate of my said son, by reason of such his neglect or refusal, or as near to the same uses as deaths of parties in the mean time will admit of, but with such omission as aforesaid.

On the 9th of March 1708, Ralph Duke of Montagu died, and left Duke John his