carry into effect under the directions therein contained. The testator has in fact not delegated to the Court any power, any discretionary power; he has used fit and proper words to describe every one of his intended limitations.

The following questions to be put to the Judges were then agreed to.

"Taking the facts from the printed cases, but reading the will as if it were a devise to the uses therein mentioned, and not a devise to trustees to convey to those uses, the following questions are put to the Judges:

"1. On decease of Lord Alford, did his eldest son, the appellant, become entitled to any and what estate in the lands devised in remainder immediately expectant on the ninety-nine years term?

*2. If he did is such estate liable to be defeated on any and what event or events, and may it or not come in esse, or revive again, on any and what event or events?

* 62

"3. On the decease of Lord Alford, did his brother Charles Henry Egerton, the respondent, become entitled to any and what estate in remainder immediately expectant on the said term?

"4. If he did, then is such estate liable to be defeated on the happening of any and what event or events?

"5. Are all or any and which of the several provisos void? "6. Are the provisos or any and which of them to be treated. as being conditions precedent?

"7. In the events which have happened, has the jointure appointed in favour of Lady Marianne Alford ceased?"

LORD CHIEF BARON POLLOCK, in the name of the Judges, requested time to consider these questions.

Ordered.

August 1.

The House sat to receive the opinions of the Judges.

Lord Chief Baron Pollock (who came up from the Home circuit), and Mr. Justice Williams (the Judge who remained in town during the vacation) attended the House. No other Judge was present.

LORD TRURO said that if there was any difference of opinion

among the Judges, so that one Judge could not deliver an opinion agreed to by the whole of them, it was most desirable that the House should have the advantage of hearing each of the learned Judges state his reasons for the opinion he had formed, and that this was especially desirable in a case like the present, where there were various points for consideration, and where, therefore, no

large majority of the Judges might agree as to some of the * 63 points. As there were but two of the Judges now present, and it was understood that there was a difference of opinion. among the Judges, he moved that the consideration of the case should be adjourned till the other Judges could attend.

THE LORD CHANCELLOR entirely agreed with this proposal. When all the Judges agreed, there had been a custom for one to read the opinions of all; but when they differed, it was of importance that each Judge should give the precise view which he took of the subject, so that the House might not only know the conclusion at which he arrived, but the steps by which he arrived at it. The difficulty here had arisen from the fact that the case was argued just as the Judges were going on their circuits, and notwithstanding the urgency for the decision, it was impossible to put the public to the inconvenience of having the circuit delayed. It had since been suggested that their Lordships would allow the opinions of all the Judges to be stated by such of them as could attend, and for that purpose the Lord Chief Baron had now come up from the Home circuit; but this was a very unsatisfactory course, and would not have been adopted but for the pressure of circumstances. Perhaps, as it was not now likely that the session would be over before the lapse of a fortnight, the further consideration of the case could be adjourned, and as some of the circuits would then be finished, many of the Judges would be able to attend.

LORD BROUGHAM said it would be contrary to all precedent and practice to allow, in a case where the Judges differed, one Judge to read an opinion for one body of Judges, and another to read an opinion for the rest. The practice, which had in recent times grown up, of hearing one Judge read an opinion for all where they were unanimous, could not be extended and applied to a case where they differed.

LORD LYNDHURST fully agreed with his noble and learned friends.

LORD ST. LEONARDS concurred.

The further consideration of the case was adjourned.

* 64

August 12.

The Judges then attended, and delivered their opinions.

MR. JUSTICE CROMPTON. The arguments at your Lordships' bar in this case were properly divided into two branches, and the answers to be given to the questions propounded by your Lordships appear to me mainly to depend on the conclusion which is arrived at with reference to the two questions to which the arguments of the counsel were almost entirely directed, and upon the consideration of which the judgment of the Court below is founded. I propose, therefore, very shortly to state the opinion I have formed with respect to these questions, and to apply the principles on which that opinion is founded to the questions proposed to the Judges. Absence from town on circuit without the papers in the case, and without books to consult, and my not having been earlier aware that we were likely to be desired to give our opinions individually at present, will, I hope, furnish an excuse for not going more into detail, and for the hasty manner in which I have been obliged, in obedience to your Lordships' requisition, to put together what has occurred to me on the subject.

The first question debated at the bar was as to the nature of the estate limited to the heirs male of Lord Alford, and as to the nature and effect of the condition, proviso, or stipulation upon which that estate is to depend.

The second question was as to the legality of the conditions, provisos, or stipulations in question.

* 65

It appears to me quite clear, on the construction of this will, that it was never intended that any estate should arise in the heirs male of Lord Alford at his death, unless he had acquired the desired dignity during his life, or unless what is made equivalent to his having done so had happened. The determination of the testator that the estates should not vest in the first or other sons of the parties taking the particular leasehold estates until the death of such parties, is most clearly expressed; and in addition to his distinctly directing the limitations for this purpose, he states, in so many words, his reasons for such directions to be,

VOL. IV.

4

[ 49 ]

that the estates to be limited to the heirs male shall not vest in them before the death of their respective fathers. By making the limitations, after the long terms of years to the fathers, to the heirs male of the body, by forbidding them to be made to the first and other sons, and by stating his express intention that the vesting of the estates in the heirs male should be suspended, the testator made it too clear for argument that no estate was to vest in the heirs male until the death of their respective fathers; and the limitation to the heirs male was conceded on all hands to be a contingent remainder to arise by way of use at the death of the father, in any person who might then be in existence, and who should be the heir male of his body. Till the moment of the death, it could not be ascertained whether there was any person in whom the estate was to vest, or in whose favour the use was to arise. The words of the proviso are said to be more applicable to the determining of a prior estate than to the preventing an estate from arising or vesting, but they are by no means inapplicable to the preventing the estate from arising. The words are, that in the event which happened "the use and estate hereinbefore directed to be limited to the heirs male, &c. shall cease and be absolutely void." The use is to cease and be void; and as the use is to be void at the time when it is to arise, it seems clear that it is never to come into operation so as to be capable of being * 66 devested. When it is argued that the stipulation is to be construed as a condition subsequent, only so as to devest something before vested, and so therefore as to be inoperative if illegal, we must see that there is something vested or in existence to be devested or defeated.

*

It could not be, and was not argued, that the estate could arise for a moment and be devested eo instanti it arose. The will of the testator that the use should be void in the event that happened is far too clearly expressed for such a violent construction. It was said that there was an arrangement, a chain of limitations, a vested interest in the limitations and an existing interest which was to be defeated by a condition subsequent. I was quite unable to form any clear idea of what the counsel for the appellant contend to be the thing which is to be devested, and their very able arguments seemed to me entirely to fail in pointing out any thing which they could hold forth as a thing in existence to be defeated, destroyed, or devested.

The only doubt that occurred to my mind on this part of the case was, whether, as this is the case of a limitation of the legal estate to devisees or trustees to uses, and they are seised of the legal estate to many different arising and shifting uses, these uses could be treated as things created or existing, to be defeated and devested by matter subsequent, so as to let in the doctrine of the non-operation of an illegal condition if subsequent. I cannot, however, think that there can be any difference between a limitation under the Statute of Uses and a conveyance at common law in this respect; and I think that the real substance and effect, and not the words, are to be looked to, and that it must be seen whether the estate is to arise and have existence only if the event should happen, or whether it is to arise at all events, and be defeated if the event happens when it has once had existence. *The true doctrine seems to me to be, that a proviso proviso * 67 which is invalid cannot be operative, either to create or to destroy. If the estate can only arise by that proviso being complied with, it fails in its creation; if the estate has once arisen, such proviso cannot destroy, and the estate remains unaffected. In the present case it seems clear to me that the testator intended and has most unequivocally expressed his intention, that no estate should arise in the heirs male, unless the dignity should be acquired before the time came for such estate vesting, and that the true construction of the will is, that unless that event happens, the heirs male should take no estate, and consequently that in the event which has happened no such estate could ever arise; and there being nothing to be devested or defeated, the proviso could not operate as a condition subsequent, to defeat or to destroy what never had existence, but must be construed as operating in the nature of a condition precedent, to prevent the arising of the estate. I should add that I have felt no difficulty from the argument as to the uses jumping about, as it was called, or as to the alleged impracticability of framing a settlement containing all the provisions. I am not aware of any rule of law against uses in such a settlement being made to jump backwards and forwards, and to vest and revest, according to the directions of the devisor or settlor. The provisions may be whimsical and capricious, and may operate cruelly in disappointing the expectations of families in favour of whose members the earlier uses may have come into operation; but there seem to be no limits to such dispositions,