ful, but in Perrin v. Lyon,1 a devise to the testator's daughter, with a proviso that the estates should go over in case she married a Scotchman, was held good. In the same manner, a particular restraint on alienation may be good (Doe d. Gill v. Pearson),2 though a general prohibition on alienation would be invalid. Lastly, as to the question of this proviso being against public policy. The first answer to that argument is to be found in the observation of Mr. Justice Burrough in Richardson v. Mellish,3 that the argument of public policy "leads you from sound law, and is never argued but when all other points fail." Public policy as a ground of legal decision was disclaimed in Hibblewhite v. MMorine with relation to a contract for the sale of goods made by a man who at the time was not possessed of the goods which he contracted to sell; Wild v. Harris is to the same effect. So is Simpson v. Lord Howden, decided in this House; and in the judgment in that case in the Court below, it was expressly said that illegality is not to be presumed; it is to be alleged and proved when it does not appear on the face of the instrument itself." That rule was in fact adopted in Capper v. The Earl of Lindsey, where an agreement made by a peer on conditions, upon the performance of which he was to withdraw his opposition to a railway bill, was enforced. * Sir F. Kelly in reply. The real question now is whether * 56 these provisos are to have the effect of conditions precedent to the remainder to Lord Alford's issue male, or whether they are to be read, as the testator clearly and unequivocally expressed them, that is, as clauses in defeasance of that estate, and in creation of another to be substituted for that which was so defeated. It is plain that the estate vested in the heirs male, and was not suspended till Lord Alford should obtain the peerage, or should succeed to his father and then obtain it within five years, and with the particular limitations mentioned in the will. That would have been postponing the estate to the happening of too remote an event. A less indefinite period for the determination of an estate has recently been held too remote. In Taylor v. Frobisher,1 a testatrix gave 1000l. to trustees to pay the interest to her daughter for life, and to the daughter's children who should live to the age of thirty years, "to be a vested interest on their respectively attaining thirty years, with survivorship among them, but if they died under thirty years without lawful issue, then the money was to be paid over to her son. The testatrix's daughter had two daughters, one of whom died before she was twenty-seven years of age, unmarried; the other survived her mother. The Court held that the word "vested" was used in the sense of not being subject to be devested, or indefeasible, and that the bequest to the children of the daughter was a valid bequest to such children as survived the daughter, and to the representatives of such as died in her lifetime; and further, that the gift over was void for remoteness. In Barnes v. Allen,2 it was expressly stated that "a contingent interest may vest in right, though it does not in possession." And a condition subsequent may operate on such an interest as much as it may on a fee simple in possession. Here the * 57 condition is subsequent and not precedent; the general form of the will shows it to be so, and if the testator had desired that it should be precedent, he well knew how to introduce words to effectuate that intention. But supposing it to be a condition precedent, and that the condition is, as the appellant contends, void as against public policy, what will be the consequence? For the respondents, it is contended that the remainder to the issue of Lord Alford cannot then take effect, but that thereon the estate for life to the respondent Mr. C. H. Egerton comes into existence, and attaches with the other remainders over, subject to their being devested according to the terms of the will. On the other hand, the appellant contends that if the condition is void in law, Mr. C. H. Egerton cannot take the estate, for this condition, which is bad as to the others, must also be bad as to him, and he can only take on the failure of heirs male of Lord Alford. As there has not been a failure of heirs male, he cannot take at all. Then as to the impossibility of the condition. on the other side, that each proviso may be taken The argument singly, and the good selected and the bad rejected, is denied. All these condi 15 De G. & S. 191. See also Tribe v. Newland, 5 De G. & S. 236. 1 Brown, C. C. 181. tions must go together. They constitute but one scheme to give effect to the intention of the testator, that intention being that these estates should be enjoyed with the title of Marquis or Duke of Bridgewater. What then is the effect of it? Assuming for the moment that the subject may refuse a dignity offered him by the Crown, whether by patent or by writ, then the proviso in the will would tend to make the devisee here refuse the acceptance of a particular title, though the Crown might desire for the public service that he should bear it. Or if the title was not refused, as in the case of Earl Brownlow being made Duke of Lincoln*58 shire instead of Bridgewater, the acceptance of the Lincolnshire dukedom would operate on his descendants as a forfeiture of their estate. * [THE LORD CHANCELLOR. Does not that argument apply to every shifting clause on which estates go over? You cannot help being the heir at law to A., yet being so may deprive you of B.'s estate.1] On the other hand, assuming that the command of the Crown to take the dignity cannot be evaded, and such is believed to be the opinion expressed in the "Report on the Dignity of a Peer," 2 then the Crown is placed under restraint in the free exercise of the prerogative, because the exercise of it may make a particular family forfeit a large estate. No man has a right to do any thing which shall tend to interfere with the administration of the law, the performance of political duties in great public servants, or the free exercise of the prerogatives of the Crown. Every matter of this kind must be dealt with according to the particular circumstances of the case. That is an answer to the argument derived from the fact that all wagers are not illegal. But as to these provisos, the cases of the parish officers are decisive. It is not what they will do, but what they may do, that the law considers, and therefore takes away from them that which has a tendency to make them do wrong. These provisos are bad in respect of three possible effects. First, as they respect Lord Alford, by placing him in a position in which it might be his interest to use the power which this enormous fortune would confer upon him in an improper manner, thus placing his interest in conflict with his duty. Secondly, as having a tendency to produce the same effect 1 See De Beauvoir v. De Beauvoir, 3 H. L. Cas. 524. 3d Report, House of Lords' Papers for 1829 (118), 75. in relation to his duty towards his sovereign by holding out an inducement to him to resist the will of his sovereign, if that sovereign should *please to call for his counsel in this * 59 House by conferring on him the dignity of a peer with a particular title. And thirdly, which is the most important as to the effects to be produced on the sovereign and on the ministers, with relation to the free and uninfluenced exercise of the royal prerogative. It may not have been the intention of the testator to produce these effects, but they follow from his will. These provisos are, therefore, illegal, because they have a tendency to act injuriously on the integrity of subjects, and to fetter the free exercise of the powers of the Crown. THE LORD CHANCELLOR. - This is a very important case, and we have the advantage of the attendance of the Judges to assist us in its decision. I feel myself under some little difficulty, as the case was originally heard before me in the Court below, but I did not think it right on that account to avoid the duty of sitting in judgment on it here. My mind is perfectly open to conviction upon it, but that makes it peculiarly important that I should not say one word as to how far my opinion may have been affected by the argument at the bar. The course I propose to adopt is simply to put to the Judges the questions to which I shall presently advert, in order to obtain their opinions as to the true construction of this will. The will devises certain estates to trustees, imposing on them the duty of making a settlement in a particular manner. In such a case the testator is sometimes what is called his own conveyancer, and directs what the settlement is to be, and the Court only carries his directions into effect. Sometimes the Court has to construe the will to find out the intention of the party, and then to frame the settlement according to that intention. It appeared to me that that was the case here. After the case had proceeded some way in the Court below, I suggested to the * 60 counsel that this was purely a legal question and that I ought to stop further argument upon it, and send a case for the opinion of a Court of Law; but it was pressed on me that it was a case which must come to this House, and that, consequently, they were ready on both sides to take my decision at that moment. My indolence was tempted by the statement that I might decide the case either way, for that it was intended under any circum stances to be brought up here. I did not, however, think it consistent with my duty to act on that suggestion. I looked into the case carefully and decided it as if my decision was to govern its result. The case is now here, and the course I propose is, to state the will, the death of the Earl of Bridgewater; the fact that Lord Alford was then in his twelfth year; that the brother of the testator died in 1839 without acquiring the desired title; that the testator's widow entered and died; that then Lord Alford entered and complied with the clause as to the name and arms; that Lady Farnborough died without issue; that Lord Alford died in 1851, having previously married and leaving issue of that marriage, but not having obtained the required title; that on his death his brother, Mr. C. H. Cust, entered and complied with the condition as to the name and arms; and that the appellant here is the eldest son of Lord Alford and the heir at law of the testator. I then propose to ask the Judges these questions. [His Lordship then proposed questions, which were afterwards agreed to.] * 61 LORD ST. LEONARDS.-I wish to draw your Lordships' attention to the form of this will with reference to the questions now put to the Judges, taking care to avoid, as I ought, the expression of any opinion on this important case. The devise is to * trustees in fee in trust to convey to certain uses, but the testator has directed that the estates shall be conveyed to the uses of the trusts and subject to the provisos afterwards stated, and in the mean time the estates are to go to the uses and subject to the powers and provisos stated in the will. The will then tells what these uses are, and the first question is one which is not submitted to the Judges, as it is a question of equity, namely, whether that which we call the trust, is in this case a trust to be executed or is executory. I do not doubt that every trust directed to be performed is executory in a certain sense, because the estate is in the trustees, and they are to convey to the uses, but, beyond that, I submit this as a point not at all in doubt, that this is not an executory trust in the sense in which we employ that term in equity. The testator here has been his own conveyancer; he has provided in technical terms for every possible event for which he intended to provide, and for the creation of every estate which he intended to limit. There is not a single limitation made to depend on the will which a Court of Equity could not |