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should be the heir male of Duke John, to take lands of inheritance from him by course of descent. The two last limitations were clearly contingent, and if neither of them vested on the death of John Lord Montagu, they never afterwards could take effect. If he had lived to marry and have a son, who had happened to die in his lifetime, no interest would have vested in that son, as not answering the description of one, who, at the [296] time of Lord Montagu's death, was heir of his body, to take lands of inheritance by descent. And this held equally as to the next limitation, to such person as should be the heir male of Duke John, for he during his life could have no such heir; and even admitting that there might, contrary to the legal maxim, be an hæres viventis, yet during the Duke's life there could be no designatio personæ of an heir male, to take lands of inheritance from him by course of descent. The intent therefore seemed plain, that under the contingent limitations, either to the heir male of John Lord Montagu, or Duke John, no interest should, during the respective lives of the fathers, vest in any of their sons; but that such son only of either of them should take the absolute property, as by surviving his father, and taking lands of inheritance, precisely answered the description. That upon John Lord Montagu's death, there being no other son of the Duke then in esse, his Grace, by the express words of the will, became entitled to the annuity, for so many years as he should live; and which life interest could not be divested out of him, by any subsequent event. The right therefore to the absolute property, must and did remain contingent during his life; and until that ended, it was totally uncertain who would be entitled at his death, to the rents and profits of the estates whereof he was seised in possession. No interest therefore could be transmitted to Duke John, from either of his sons George or Edward, who had themselves but mere possibilities; and as his two daughters became entitled upon his death to the possession of the real estates, they likewise became entitled to the absolute property of this Exchequer annuity.

But it was objected, that the judgment in the case of Lady Catherine Pelham v. Gregory (3 Brown, P. C. 204) was an authority to prove, that George the second son of Duke John, became entitled, upon his birth in 1715, to the absolute property of the annuity in question.

To this it was said to be impossible to point out under which of the limitations in Duke Ralph's will this annuity could vest in George. Upon the death of John Lord Montagu, there was no person in being capable of taking it, under the above description. What then was to become of it till the birth of George? It was not to accumulate; no such direction being given in the will, nor any thing said to warrant that construction; and therefore, had a bill been brought by George, for an account of so much of the annuity as came to his father's hands, from the death of his brother John, praying that the amount thereof, together with the growing produce of the annuity, might be laid out to accumulate for his benefit; no court of equity could have deprived Duke John of his right under the will, which expressly gave him the annuity for life; so that the right of George, and of every other son who might be born, still remained contingent. This made an essential difference between the present case, and that alluded to. There, the Duke of Newcastle had devised his [297] freehold and leasehold estates to Thomas Pelham for life, remainder to his first and other sons in tail; remainder to Henry Pelham for life, remainder to his first and other sons in tail; with remainders over; so there could be no doubt of a remainder in tail vesting in Mr. Pelham's first son, the moment he was born, he being thus fully and sufficiently described and pointed out for the purpose; and as the freehold and leasehold estates were devised to him by the very same words, as soon as he had a vested remainder in tail in the one, he of course became entitled to the absolute property of the other. But here, although George upon his birth had a vested remainder in the real estates, as being limited to the second and other sons of Duke John; yet he could not be the person intended to take the Exchequer annuity, if he did not live to come into the possession of the real estates; because, until that period, he could not answer the description of the person who was to take at Duke John's death. In the other case, there was no distinction made in the limitation of the freehold and leasehold estates, but in this there was a manifest one; the property of the annuity remaining suspended during Duke John's life, and given only from and after his death, to such person or persons as should be entitled to the rents and profits of the testator's real estates; under which description the appellant Lady Beaulieu became entitled to one moiety of it upon her father's death.