capricious conditions with which property may be bequeathed, though it touch not the public interest; but the moment conditions (in this case a series of conditions) are introduced, which in principle have a strong tendency opposed to the public welfare, the common law, which favours not conditions, but deems them odious, is strong enough to stay the evil and repress the mischief; and in a perfectly new case (a case altogether primæ impressionis) I think the Judges are bound to hold fast to the principles of the common law, to remember the maxim salus reipublicæ suprema lex, and if the condition be really in principle against the public good, to pronounce it in their judgment void.

It only remains for me (on this point) to inquire whether this particular condition, the obtaining a peerage by Lord Alford within a limited period, is a condition which falls within the principle I have endeavoured to establish; and I am of opinion that

it is. * A peer, in addition to being a member of one * 153 branch of the Legislature, is an hereditary counsellor of the Crown, and one of the Judges of the highest court of judicature in the realm. The framer of this will seems to have thought of nothing but the title and dignity of a peer, and to have overlooked his important duties, and the interest which the public have in the correct discharge of them; he seems to have considered the peerage as merely giving a high position in the table of precedence, as being a bauble, the subject of bargain or barter, contract or condition, and to have forgotten that a peer is at once a legislator and an expounder of the statutes, that it is his office to frame and also to decide upon the law, and that he has, in the constitution of this country, duties to perform of the greatest importance to the public welfare. The creation of a peer is an exercise of one of the prerogatives of the Crown, which the Crown possesses, like all other prerogatives, for the good of the country, and which ought to be exercised solely with reference to the public welfare, and the merits of the individual to be promoted, and the cause or occasion of his promotion. It was the object (no one could have doubted it if it had not been avowed, but it was the avowed object) of the testator by this condition to endeavour to obtain a renewal of the peerage in his family, which he foresaw would expire with himself or his brother; he endeavoured to create a strong pecuniary interest to procure a peerage, and he did so that the peerage might be got; he knew the influence that great wealth and large possessions ex

*154

ercise in the affairs of the world, and he took his chance whether they would be well or ill employed, so that they were successfully employed in accomplishing his end and aim, or, as he expressed it himself in his own language, in the codicil of the 31st March, 1823, "my object of uniting my estates to the title of Duke or Marquis of Bridgewater." With this view he created this * strong, powerful, and dangerous pecuniary interest to obtain the peerage, an interest which might very possibly lead to unworthy attempts to obtain it. He prescribed the end, and he furnished the means, and he set no limit or bounds to the use of them; and it is impossible, I think, to doubt that he intended this condition to operate upon the mind of the Sovereign, or the minds of those who advise the Sovereign (and expected it would or might do so), to grant the peerage by reason or on account of the conditions, and from motives other than those which alone ought to operate, viz. the public good, and the merits of the individual to be promoted, and the cause of his promotion. I am of opinion that it was not competent to the testator so to deal with his property; that it is quite inconsistent with the public welfare, and even the public safety, that property should be bequeathed subject to conditions unnecessarily, capriciously, wantonly, and officiously introduced, and made to depend on any public act of state, whether the Crown, the Legislature, or any branch of it, or of the executive government; and I am therefore clearly and undoubtedly of opinion that this condition is unlawful and void.

I shall detain your Lordships but a moment while I state my answers to the other questions:

1st. On the decease of Lord Alford, his eldest son, in my opinion, became entitled to an estate tail male in possession.

2d. I am of opinion, that such estate is not liable to be defeated. I think all the clauses in the will relating to the acquisition or the acceptance or non-acceptance of a peerage are void.

3d. On the decease of Lord Alford, his brother Charles Henry

Egerton took no estate in possession, but (expectant on the *155 failure of the heirs male of the body of Lord * Alford) he took the residue of the term if he should so long live.

4th. I am of opinion that such estate is not liable to be defeated by the acceptance or non-acquisition of any peerage by any

one.

The 5th and 6th I have already answered. As to the 7th, I am

of opinion that in the events that have happened the jointure appointed in favour of Lady Marianne Alford has not ceased.

August 19.

LORD LYNDHURST.- My Lords, I have read and considered with attention the opinions of the learned Judges in this case, and, after weighing the reasons upon which they are founded, I am constrained to say, though with much deference, that I differ from the conclusions of the majority of those learned persons. It is to be regretted that several of the opinions (as stated on a former day) were prepared during the pressure of the circuit, and without sufficient opportunity of consulting the authorities bearing upon the different, and in some respects, intricate points which the subject involves. But though I regret this circumstance, it was, I have reason to believe, unavoidable.

Two questions have been raised: first, whether the proviso respecting the title of Marquis or Duke of Bridgewater is a condition precedent or subsequent; and secondly, whether the proviso is valid, or is to be regarded as against public policy, and therefore void.

*

As to the first and more technical question, it is I think admitted, and cannot indeed be disputed, that the will has been drawn with much care and attention, by a person obviously well acquainted with the force and effect of the terms he em- * 156 ployed, and not likely, therefore, to have misapplied them. The testator declares his will to be that, if Lord Alford shall die without having acquired the title of Duke or Marquis of Bridgewater" to him and the heirs male of his body, then and in such case the use and estate therein before directed to be limited to the heirs male of his body, shall cease and be absolutely void." These are admitted to be, in point of construction, and according to the constant usage of conveyancers, words importing a condition subsequent. The same words are uniformly used in different parts of the will as denoting conditions subsequent, and in cases where no other interpretation can be put upon them. In no instance are they used to express a condition precedent. In the previous passage of the will, the limitation of the uses and estates to Lord Alford and Henry Cust, and to the trustees during their respective lives, and to the heirs male of their respective bodies, is declared

to be "subject to the provisos for the determination thereof thereinafter contained"; and the use of the distinct word "determination" as to all these uses and estates indiscriminately, manifestly shows that the testator intended the conditions contained in those provisos to be, as to all of them, conditions subsequent. In like manner, in the proviso respecting the testator's brother being created Duke or Marquis of Bridgewater, the testator speaks of the proviso for the determination of the use or estate directed to be limited to the heirs male of the body of Lord Alford; and so also in the proviso immediately following relative to Earl Brownlow. It is further to be observed, that in the very clause in question, the condition is admitted to be a condition subsequent as to one part of it, although it is contended to be a condition precedent as to the other part. In a case of necessity, indeed, such

a difference of interpretation in the same clause might be * 157 adopted, but a very strong case must be made out to justify such a departure from the ordinary rules of construction. The testator declares that the use or estate limited to the heirs male of the body of Lord Alford, shall, in a certain event, cease and be absolutely void, words which, even in their ordinary acceptation, and without reference to any technical rule, denote exclusively a condition subsequent. The proviso has nothing of the character of a condition precedent. It is not said that upon the occurrence of such an event a use or estate shall arise, but that if such an event shall not have occurred, a use or estate previously limited shall be defeated. It does not create, it determines and destroys. The will, in fact, consists of a series of limitations in favour of different persons and sets of persons, and the obvious meaning as to the point in question is, that if Lord Alford shall die without having acquired either of the suggested titles, the particular limitation in the series created in favour of the heirs male of his body, shall cease and be void, — the limitation is in effect to be struck out of the series and the next limitation in favour of Henry Cust is to be advanced, but then it is upon a condition, which, if invalid, can have no operation.

-

But, my Lords, it is said, and not improperly said, that whether a condition is to be construed as precedent or subsequent must depend on the intention of the testator to be collected from the whole instrument; that no particular form of words is absolutely

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necessary to express the one condition or the other, and that the most strict technical words or form may bend to the clear and manifest intention of the testator. But far from the intention of the testator, to which I shall presently advert, being at variance with the terms used, according to their natural and legal construction, it appears to me that the case is just the reverse. The fallacy, if I may so speak, which has led to the forcible conversion of the words importing a condition subsequent in this case into a condition precedent, seems to be this, namely, that a condition subsequent is not properly applicable to the limitation of a contingent use or estate. But such a use or estate is an interest recognised by the law, and not unfrequently of great value; and there is no more inconsistency in making it subject to a condition subsequent, by declaring that if a certain event shall not have occurred, the limitation shall determine or cease and be void, than if it were an interest vested or in possession. If the law allows such a limitation to be made, such an interest to be created, it follows, as of course, that it may be vacated or determined. It is clear that the framer of the will considered it as no objection to the effect of a condition subsequent, that the use or estate limited was contingent, since he expressly provided that the use or estate in this instance, which he must have known to be contingent, should, upon the failure of a certain event, cease and determine.

It is also, my Lords, to be observed, that in the clause respecting the name and arms the testator declares that if the person entitled, &c. shall refuse to take, or shall discontinue to use the name and arms of Egerton, &c., all such estates as shall be limited to the sons of such person in tail male, as for the time being shall be in contingency or suspense, as the case may happen, shall cease, determine, and be void"; thereby expressly stating that a use or estate, which is described in terms as being in contingency, shall cease and be void. And here I may remind your Lordships that one of the learned Judges, though his opinion in the result is unfavourable to the appellant, Mr. Baron Alderson, after adverting to the words "shall cease and be absolutely void," observes "that they must be allowed to be very strong words, indicative of testator that the heirs male * 159 of the body of Lord Alford should in some way or other

an intention on the part of the

first take the estate, and, on the contingency occurring, lose that