be inferred from any one of the provisos, or all taken together. Those provisos show a great anxiety on the mind of the testator, that the title should be obtained, but that any improper means should be actually used does not appear on the face of the will, as it did in the case of The Earl of Kingston v. Pierepont. Whether if it were pleaded in a form of action which required pleadings, that such was the real purpose of the bequest, such a plea could be proved, is entirely beside the question which your Lordships propose. No inference whatever can lawfully be made on the face of the will, that such illegal means were really contemplated, and the presumption always is in favour of legality until the contrary appears. If it could be shown that illegal means would be used, or that the probability of their being used was so great that the testator must have actually contemplated and intended the use of them, I should agree that the proviso was tainted with illegality; but nothing approaching to such a case appears.

It is argued then that the provisos are illegal by reason of their tending to cause the use of illegal means, though no intention to use them existed in point of fact. That a * person *127 might be tempted to use illegal means to obtain a title in consequence of such a proviso is not sufficient. Nor can we justly reason from the magnitude of the estate: some minds would be as much influenced by the prospect of gaining 100l. as 100,0001. The greatness of the sum to be gained by the compliance with the proviso might be some evidence, if the question of fact were properly raised as to the real intention of the party making the will, but as a ground of avoiding it on legal principles, the magnitude of the sum appears to me immaterial. Where a wager or a contract is void according to the established rules of law, as a wager with a judge as to the event of a cause, or a contract in restraint of marriage, or the like, the sum contracted for signifies nothing. As to the tendency to use corrupt means, can any one say that they were the most probable to be used to accomplish the end? Honourable means may accomplish it, and upon what legal principle are we to presume that they will not be more likely to prevail? Are we to presume that the evil principle would in Lord Alford prevail over the good, and that he would be more prone to attempt to advance his interest by corrupt and dishonest means than by those which are worthy and laudable? Are we to assume that the advisers of the Crown would be more prone to yield to [97]

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suggestions of a corrupt than of a pure and honourable character? It would be indecent to admit the supposition that corruption can prevail for such a purpose.

*

This supposed tendency to evil would apply to other cases as well as to those which are political. Suppose a large estate left to A., subject to the condition of his becoming senior wrangler and senior medallist at Cambridge. Would it be illegal, as tending to induce him to employ the money in corrupting the examiners, or betraying into idleness and profligacy, or destroying his *128 most promising competitors? If a large estate is left to a man conditioned that he should within a stated time marry a countess, would it be void, as tending to induce him to use improper means to effect such an alliance? Or if an estate was to be forfeited in case the devisee did not take holy orders, or become a dean or a bishop, or take a degree of doctor of divinity in a certain time, would it be void, as having a tendency to induce him to obtain those orders, dignities, or distinctions by bad means? So the case of a condition to obtain the royal license to use a particular name and arms, a most common occurrence, might on similar grounds be impeached, as having a tendency to cause the royal license to be obtained by corrupt means. So even also the clause, in the form in this will, which is to use "the utmost endeavours to obtain it," might be said to have a similar though a more remote tendency to the same end; and yet to object to either of such clauses, on either ground, seems to be utterly untenable. Nay, a limitation to one for life, remainder to another, might be said to be void, as having a tendency to cause the remainder-man to try to kill the tenant for life; a limitation to first and other sons successively in tail, to induce the second son to destroy the life of the elder by a direct act of murder, or a continued course of cruelty and unkindness, or to use fraudulent artifices to prevent him from marrying. Insurances on lives might be avoided on the same ground. Insurances of property against fire, contracts by burial clubs to pay sums of money for the funeral of wives or children; in short, there are few contracts in which a suspicious mind might not find a tendency to produce evil; and to hold all such contracts to be void would, indeed, be an intolerable mischief.

Many similar instances might be put in which the adoption of this principle would lead to the most dangerous consequences

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to the freedom of disposition by a testator, and to the obligation of contracts and conveyances inter vivos. The great principle of the law has been to leave both entirely free. The only case at all bearing upon the question of obtaining a peerage is that of The Earl of Kingston v. Pierepont1 already cited; but it differs in this essential particular, that there the money claimed was bequeathed for the express purpose of being applied in obtaining a dukedom, and differs as much from the present, as a gift to A. on condition of his taking holy orders would differ from a bequest of money to be applied in obtaining holy orders, which would no doubt be illegal.

Another objection is, that these provisions are illegal, because they tend to embarrass the Crown in the exercise of its prerogative. We are bound to assume that the Crown, in the exercise. of its grace and favour, will be guided solely by constitutional considerations, by regard to merit, loyalty, and public services; and we cannot imagine any thing more illegal in that which is said to be a difficulty in the way of a free exercise of the prerogative, than in rival applications for the same office or the same title. If a man during his life were to apply to the sovereign to grant a peerage to A., and offer if it were done to endow its holder with an ample fortune, no authority has been quoted or argument adduced to show that he would be acting illegally or corruptly; and yet in principle we cannot distinguish such a case from the present.

I think, then, that all the first six provisos are good, and not void on any ground, and that in every case to which they apply as conditions subsequent, the limitation would be defeated by noncompliance with them.

is bound *130

The seventh and eighth provisos are impeached upon another ground, viz. that it is the duty of every subject to obey the summons of the Crown to Parliament, and that he to take his place in Parliament as a peer, and by any title that the Crown may choose to bestow upon him. This is a very refined objection; nevertheless, if well founded, it ought to prevail; but we think it is not well founded. As to Lord Brownlow, he being already a peer of Parliament, and bound to attend to advise the Crown in that character, I do not think that he is bound by his duty of allegiance to attend Parliament by another title or

1 1 Vern. 5.

accept a fresh patent; and no authority can be found in support of such a position. The seventh proviso, therefore, is not illegal, as encouraging the violation of this duty of a subject.

The eighth is said to be objectionable on the ground that it provides that if Lord Alford or Mr. Charles Henry Cust, both commoners, or the heirs male of his body, shall take any title other than that of Duke of Bridgewater, to which the Marquis of Bridgewater shall not if then, or could not if thereafter to be, created, be superior in rank, or have precedence, being of the same rank, then the uses limited to them shall be void. The other parts as to succeeding to a title are unobjectionable.

It is argued that these, being commoners, would be bound, not only to obey the summons of the Crown, but to obey it by whatever title the Crown chose to give him in the writ. That a commoner is bound to appear to the writ of summons must probably be conceded, although in Lord Abergavenny's Case,1 it is said that the person to whom it was addressed might have excused himself or waived it and submitted to fine. But we conceive that there was an obligation in point of law to obey, and the fine was only a means of enforcing it; and therefore a condition subsequent to

defeat an estate might be illegal on the ground that it was a *131 condition to disobey the king's writ. But I think that

this condition is not illegal. There is no authority that I am aware of, that a subject may have a writ directed to him by any name by which he is not previously known, or which he does not choose voluntarily to adopt, nor any authority that he is bound to accept a patent of nobility which he is not willing to accept by a name which he does not choose to adopt. Therefore we are of opinion that the last of these conditions is not illegal on the ground that it is a condition to disobey the lawful mandate of the king.

We also think, that as all these eight conditions are separate from each other, one may be void without affecting the validity of the others; and though if an invalid condition subsequent should occur, the limitation would not be defeated, that would not prevent a valid condition subsequent from operating to defeat the limitation.

It is said that all these provisos have one object, and show the testator's intention to accomplish it. But the object is lawful. 1 12 Rep. 70 b.

The anxiety of the testator to accomplish it by so many stringent provisions might be made some evidence of the real intention of the testator to use improper means, but it would be evidence only; and if that intent had been averred, and could be proved to have been in fact that corrupt means should be used, all would be void; but on the face of the will no such intention can be seen, and to infer it would be to act upon mere loose suspicion, without any legal ground whatever, and contrary to the usual rule, that legality, not illegality, is to be presumed until the contrary is proved.

THE LORD CHIEF BARON. In dealing with the seven questions proposed by your Lordships to the Judges, it appears to me to be the more convenient course to answer them, not in the order assigned to them by your Lordships, but to take in the first place the sixth question and then the fifth; as it appears * 132 to me that upon these all the rest depend, and these are the questions that have been principally argued at your Lordships' bar. I propose, therefore, to consider the sixth question first, which is," Are the provisos, or any and which of them, to be treated as being conditions precedent?" The only provisos as to which any doubt can be entertained, and to which any argument has been directed, are those which relate to the acquiring or acceptance of a peerage, and especially those which declare the will of the testator to be, that in certain events the uses and estates limited to the heirs male of the body of Lord Alford in the first instance, and then, secondly, of Charles Henry Cust, shall cease and determine"; and to these provisos alone the following remarks are intended to apply.

This, my Lords, is purely a legal question, turning on the true construction of the will, on the intention of the testator, and the effect to be given to that intention if it can be discovered, and it involves some of the most obscure and difficult and doubtful matters connected with our judicial system.

The original maxims of the law of real property were extremely simple and clear, but various causes, chiefly perhaps a continued struggle on the part of judges to adapt it to the growing exigencies of society, and a few Acts of Parliament intended to improve it, have elaborated it into an extremely refined and artificial system, in the administration of which there has been recorded more dif