GULLIVER V. ASHBY. Next, it is observable, that these words are expressly penned as a condition subsequent, and not as a limitation; and yet the next clause of the will shews, that the testator knew how to limit. If this condition be turned into a limitation, it must be by implying something that is not expressed. In answer to this it is said, that no such implication has ever been raised upon a conditional estate tail. Two cases in point have *been cited by Mr. Blackstone to the contrary. And they go [ *615 ] upon a very solid ground. A condition, when annexed to an estate in fee, is meant to be compulsory; but when annexed to an estate tail cannot be so meant, but merely as an intimation of his wishes; because the donee may bar the estate tail when he pleases, and the condition perishes with it. Thus it stands upon general reasoning. But, upon the words of this will it is clear, he did not mean the estate should entirely cease upon breach of the condition. It is imposed personally on those to whom the estate should successively descend and come, not on the root of their several descents, and is therefore binding only personally. This is also the testator's meaning in the clause respecting waste. He does not make the estate tail cease, but gives it to the next taker. Such a limitation is indeed void in point of law, according to Jermyn and Chivalry, also called the Court of Honour, as to which see 4 Inst. 123; R. v. Parker, 1 Sid. 352. And the offence of assuming or quartering arms, to which a person has strictly no right, is cognizable only in that Court, which is now obsolete: so that it seems any arms may be assumed or quartered with impunity. Except, that perhaps upon a title of dignity being granted, it may be necessary that the grantee should be able to prove his arms at the Herald's College, or else should have arms granted to him in the regular form. Nevertheless it is usual to adopt the following expression in the clause for taking the arms and surname :-" Provided, &c. that all and every the persons and person, who by virtue of the limitations hereinbefore contained, or of this proviso, shall become entitled to the possession of the rents and profits of the manors and other hereditaments hereby limited in strict settlement, or expressed or intended so to be, and who shall not be then called by the name or use the arms of A., shall and do within the space of one year next after they shall respectively become entitled to the possession or to the rents and profits thereof; and that C. D., the husband of the said E. F., shall and do within one year next after the said E. F. shall so become entitled as aforesaid; and that all and every the person or persons whom the said E. F., after the decease of the said C. D., shall or may marry, or whom the said G. H. or any of the daughters or issue female of the said, &c. respectively shall marry, shall and do, if the said E. F., G. VOL. I. H., or the daughters or issue female of the said, &c. respectively shall at the time of such her or their marriage or respective marriages be so entitled as aforesaid, then within one year next after the solemnization of such marriages respectively; and if the said E. F., G. H., or the daughters or issue female of, &c. shall not be entitled at the time of such her or their marriage or respective marriages, but shall afterwards during her or their coverture or respective covertures become so entitled as aforesaid, then within the space of one year next after she or they shall severally become so entitled as aforesaid, TAKE upon himself, herself, or themselves respectively, and use in all deeds and writings whereto or wherein he, she, or they shall or may be a party or parties, and upon all other occasions, the SURNAME of A. together with his, her, or their own family surname; (but so, nevertheless, that he, she, or they shall and be commonly styled and designated by the surname of A.); and also shall and do quarter the ARMS of A. with his, her, or their own family arms; and shall and do within the space of one year next after he, she, or they shall so become entitled as aforesaid, or after the solemnization of their said several respective marriages, (as the case may be), apply for and endeavour to obtain an act of Parliament, or proper licence from the Crown, or take such other means as may be required or proper to enable and authorize him, her, or them to take, use, and bear the said surname and arms of A." K K GULLIVER v. ASHBY. Qu. How far an heir can take ..dvantage of a condition for and at what time? Arscot (x), yet this construction is certainly most agreeable to the testator's intent. It is not necessary to consider how far the heir could have taken advantage of such a condition as the present: that may be doubtful. But the plaintiff can only claim upon the conditional limitation. Two other points have been made in the case, not necessary taking a name, to be now determined, if this be a condition subsequent, and not a limitation:-1st, Whether the party had all his life-time to perform this condition in? As to which I give no opinion. 2d, Whether, supposing it a limitation, the plaintiff could now take; because the estate, by his former laches, is gone over. To this I also give no opinion at present. If it had been necessary, perhaps one strict construction might have been set up against another. [ YATES, J.-I am most clearly of opinion, that this is not a conditional limitation. It is not express, nor can it be implied, because it is not necessary to effectuate the testator's intent. No interest of any third person would be defeated 616] *by the breach of this condition: there is nothing, therefore, to induce the Court to raise an implication to support a vain, an idle, a useless intention. The case in Moor went entirely upon the construction of the statute of uses, which had nothing to do with the distinction between a condition and a limitation. There never was, and never will be, such a limitation implied in case of an estate tail; because the Court always means to support the intent of a testator; but such an implication would defeat it, by stripping the issue in tail. The Court will never make so hard a construction. I don't consider this (z) Cited in Corbet's Ca., 1 Rep. 85 a; from which cases, and others collected in Fearne, C. R. 252 (8th ed.), it appears, that a proviso to cease an estate tail "as if tenant in tail were dead," is repugnant and void; because the estate tail would determine not upon the death of the tenant in tail, but upon his death without issue (supposing him to be the first taker). Therefore it is absurd to say, that the estate should cease as if tenant in tail were dead, his death not being positively a determination of the estate. Mr. Butler, in n. (e), ibid. observes, that the expression, that the estate of tenant in tail shall cease "as if he were dead without issue," is not sufficiently accurate. For though in the case of A., the first tenant in tail, dying without issue, the estate tail would determine; yet if A. had two sons, B. and C., when B. is in possession, his dying without issue will not have the same effect: for in that case the estate tail will be continued in his brother C. and his issue. And as it is requisite that the proviso should be such as to determine the estate tail entirely (for it cannot be determined in part and be left existing in part), the expression, to meet every possible case, should be to the following effect" as if the party be coming entitled were dead without issue, and there were a general failure of issue inheritable under the limitation to A. and the heirs of his body." Otherwise the proviso would be repugnant and void, inasmuch as B.'s being considered dead without issue, living C. or C.'s issue, would only determine the estate tail in part. Where an estate is limited in strict settlement, this part of the proviso may be in the following terms-" And all the said manors, &c. shall go to the person next in remainder, under the limitations herein before contained, in the same manner, as if such person or persons so neglecting or refusing, or whose husband or husbands shall so neglect or refuse, being a tenant or tenants for life, were dead, or being a tenant or tenants in tail male or in tail, were dead, without leaving any heir inheritable to the estate tail or estates tail then vested in the person or persons so neglecting, &c. or whose husband, &c." or "without leaving issue inheritable under such entail." See also another form and Mr. Butler's very valuable observations in Harg. Co. Litt. 327 a [n. 283].-See, as to the condition of taking the surname, Doe v. Lord W. Beauclerk, 11 East, 657. even as a condition, but as a mere recommendation only. As a condition it would be nugatory; for the party might write his name once or twice, then suffer a recovery, and bar the whole. The clause respecting waste shews the testator knew how to limit over. ASTON, J.-I give no opinion, whether this is a condition or a recommendation; it is clearly not to be implied a limitation, being not grounded on the intent of the testator. But the interpretation prayed is clearly against his intent, and never given upon an estate in tail. The report in Savil is the best and true report of Rudhall and Milward. The next clause shews, that, on breach of the proviso, the estate was meant to go to the issue in tail, and not to the remainder-man, though the case of Jermyn and Arscot makes such a condition void." As to the time of the performance, and the other point, I give no opinion, but only think, that a rigid construction should be put upon such odious conditions. GULLIVER V. ASHBY. HEWIT, J.-There are two cases in which words of condition always operate as a limitation:-1st, Where there is a devise over in case of non-performance: 2d, Where the heir-at-law is the devisee. The intent of the testator was, not that the issue should be barred by the breach of the first taker: he never meant that their estate should depend upon his: he did not mean to create an estate tail in the first taker, but has so expressed himself that it must be so by the rules of law. Here is certainly no devise over, and I am not satisfied, in this case, that Saunders is to be considered as the heir-at-law. But if he was, as this is an estate *tail, Thomas's Case is a case direct in [ *617 ] point. It is unnecessary to give any opinion on the other points. (a)" It seems now agreed, that wherever, in a devise, a condition is annexed to a preceding estate, and upon the breach or non-performance, the estate is devised over to another, that condition shall operate as a limitation, circumscribing the continuance and measure of the first estate; and that upon the breach or performance of it (as the case may be), the first estate shall ipso facto determine and expire, without entry or claim; and the limitation shall thereupon actually commence in possession, and the person claiming under it, whether heir or stranger, shall have immediate right to the estate. And limitations of this sort are properly called condi Postea to the defendant (a). tional limitations."-" But where there is WILSON v. SEWELL, Master of the Rolls. S. C. 4 Burr. 1975. The Master of the Rolls may ACTION on two feigned issues, to try whether two leases granted by Sir Thomas Clarke, late Master of the Rolls, the one dated 9th June, 1755, the other 5th January, 1762, of cer- concurrent tain premisses in Chancery Lane, belonging to the office of leases as he grant as many WILSON v. SEWELL. the last seven years of a former lease. And, it seems, may at any time take a surrender, and renew for 21 years. 66 Master of the Rolls, or either of them, were, on 5th January, 1765, good, valid, and subsisting leases for the residue of the terms comprised therein. On a special verdict it was found, pleases during that in 12 Ĉar. 2(b), an act of Parliament was made, "reciting, that, as former Masters of the Rolls had no power to grant "leases for such terms as might encourage tenants to build "and to repair, the estate was much out of repair; therefore "the Masters of the Rolls for the time being were empowered "to grant leases for forty-one years, to commence from the making, reserving 20s. rent at least for every parcel of ground on which any new house shall be built, and the usual rent "where there is no provision for new building. Provided that, "after the premisses have been once letten, according to the power aforesaid, the Master of the Rolls shall not grant or 66 make any new or concurrent lease, until within seven years "of the expiration of the lease then in being: nor for any less "rent than upon the former lease; nor for any longer term "than twenty-one years."-That 9th October, 1738, Mr. Verney was made Master of the Rolls; and, 8th March, 1740, demised the premisses to Robert Harley and Charles Frewen for twenty-one years from the making, at 37. rent. That 29th May, 1754, Sir Thomas Clarke was made Master of the Rolls; and, on 9th June, 1755, granted a concurrent lease (c) of the premisses to Charles Deaves and John Harrison for twentyone years from the making. Afterwards, on 5th January, 1762, Sir Thomas Clarke granted another lease of the premisses to Samuel Seddon and Charles Deaves (who had survived said John Harrison), reciting the lease of 8th March, 1740, and that the same was within less than seven years of expiring, for twenty-one years from the making. That Charles Deaves, by indenture, bearing date 4th January, 1762, did surrender to Sir Thomas Clarke nine leases, dated 29th August, 1754, and thirty other leases, dated 9 June, 1755 (including the lease in question), all which were granted in trust for Sir Thomas Clarke, who had directed the same to be surrendered, and all his interest under the said leases or otherwise howsoever, to enable him to grant new leases: but that the said surrender (though dated 4th January, 1762), was not in fact executed till 5th June, 1764. That Sir Thomas Sewell, the defendant, was made Master of the Rolls on 4th December, 1764. [ *618 ] This case was argued in last Michaelmas Term (1765), by Ashhurst, for Sir Thomas Sewell (the lessor of the plaintiff, it being then in the shape of an ejectment), and Dunning, for Wilson, the then defendant. Ashhurst argued, that the surrender by Deaves must take effect from the delivery, viz. 5th June, 1764; Perk. sect. 145; Salk. 76(d). Therefore [it] operates as a surrender of the leases of 1755, and of Deaves's moiety of the leases in 1762, the (b) C. 36. (c) As to concurrent leases, see Bac. Abr. Leases, (E), pa. 64, and Sugden on Powers, 595 (3d ed.). (d) Styles v. Wardle, 4 B. & C. 908; S. C. 7 D. & R. 507. WILSON V. SEWELL. words of surrender being general. If so, Sir. T. Clarke became thereby tenant in common with Seddon; and the successor may bring his ejectment; Cro. El. 737, 802; Co. Litt. 199 b. And with regard to the question at large, first consider the intent of the Legislature. Concurrent leases were allowed at the end of fourteen years, and not sooner, to encourage repairs, and for the benefit of the successor at the same time, that every Master may have a fair chance of renewal. Sir Thomas Clarke thought it necessary to have a surrender, before he granted a new lease, which followed the other so closely.-*2dly, Next con- [ 619 ] sider, whether the power is well executed. The lease of 1755, though good when made, is now out of the case, being surrendered and gone. That of 1762 is void, because,-1st, The power of leasing, being once executed, is determined pro hâc vice, till the period comes round to make it again exerciseable ; Eq. Cas. Abr. 342; Freem. 61 (e); like the case of a power to make a jointure.-2dly, It is contrary to the words of the act. The lease of 1755 was in being when that of 1762 was made, and not within seven years of expiring.-3dly, It is contrary to the spirit and intent of the power, and fraudulent. Fraud, particularly in the case of powers, is cognizable in a Court of law; Lane and Page, T. 27 Geo. 2, B. R. (f). A power given for one purpose, shall not be exercised for another, though within the letter of the power; Allan and Belcher, Trin. Vac. 31 Geo. 2 (g). In Chancery a power must be executed according to the intent of granting it. A grant, by a Master of the Rolls to his own trustee, is a fraud upon the power, and was never intended by the Legislature. This is an instance of the fatal consequence; stronger than Lane and Page: It is not only a constructive, but an actual fraud. The lease in 1762 takes no notice of that in 1755, as if it meant a suppression at first. Afterwards, on recollection, a surrender is made, but antedated. Dunning, for the then defendant, argued, that, if the leases of 1755 and 1762 were co-existent, there would be great difficulty; but they never were so. The acceptance of the new lease merged and surrendered the former. This was not in being the instant the new one was signed and accepted. It is the more forcible mode of surrender. He cannot be supposed, by the words" or otherwise" in the actual deed of surrender, to intend to part with any interest but those under * the leases [ *620 ] there recited. The jury have not found such an intent. The Court will not construe the words to make them operate against the party's meaning, which was clearly to effectuate, not destroy, the lease of 1762. I admit, that if the lease of 1762 had not been to Deaves, who had in him the interest of 1755, it would have been bad without a previous surrender. And a subsequent surrender could not have been made to Sir T. Clarke, for that must be to the immediate remainder-man, and (e) Hatcher v. Curtis; S. C. 2 Eq. Cas. Abr. 671. (ƒ) Ambl. 233; see Sugd. on Powers, 406 (3d, ed.). (g) 1 Eden, 132; see Sugd. ubi sup. and Daubeny v. Cockburn, 1 Mer. 637. |