Sir Cæsar Wood, alias Cranmer, v. Duke of Southampton [1692].
[15 Lds. Jo. 134; Mew's Dig. iii. 2090. See also 1 Vern. 338; 2 Freem. C.C. 186.]
1 Ver. 338. Construction of a conditional Limitation upon a Marriage, &c.—Appeal from a Decree in Chancery; the Case was thus; Sir Henry Wood, the Appellant's Uncle, makes a settlement in Consideration of a Marriage to be had between his Daughter Mary and the Duke, &c. to the Uses following, i.e. in Trust to receive and pay out of the profits 450l. a Year to the Lady Chester, for the Education and Maintenance of his Daughter, till [84] twelve Years of Age; then 550l. a Year till Marriage, or seventeen Years of Age, which should first happen: And in Trust to pay the Residue of the Profits to the Duke after Marriage, he first giving Security to the said Trustees to provide Portions and Maintenance for the Daughters of that Marriage equal to the Sum he should receive; and in case there should be none, then the same Money to remain to the Respondent; and if the said Mary should die before Marriage, or Age of seventeen Years, to such Uses as Sir H. W. should appoint; and if Mary, after Sir Henry's Death, die under sixteen, the Respondent then unmarried to any other Woman, or after and before seventeen, the Respondent then living and unmarried; or if before seventeen she should marry any other, or if she should refuse the Respondent, then 20000l. out of the Profits to the Duke.
But if the said Marriage shall take effect after Mary's Age of sixteen Years, and she shall have Issue Male by the Respondent, then for the better Settlement of the Premisses upon the Issue Male, and a more ample Provision and Maintenance for the Respondent and his Wife, and the longest Liver of them, in Trust for the said Duke and Mary, for and during their Lives, and the Life of the longer Liver of them; and after their Deaths, to the first Son, &c. in Tale Male; and for Default of Issue Male, to the Daughters; and for Default of such Issue, in Trust for such Persons only as Sir Henry should appoint; and in Default thereof, to the Right Heirs of Sir Henry.
Sir Henry W. at the same Time makes his Will, tho' dated after the Settlement, reciting that he had settled the Premisses upon the Duke and Mary for their Lives, and the Life of the longer liver of them, &c. and confirms it; and in Case the said Marriage should not take effect according to the Limitations of the Settlement; or if the said Respondent should die without Issue by Mary; or if he have Issue by her, and that Issue die without Issue; then the Remainder to Mary for Life, and afterwards to her first Son; and after several mediate Remainders, then to the Appellant for Life, &c. and after to Thomas Webb, &c.
Sir Henry Wood dies; the Marriage between Mary and the Duke afterwards takes effect upon her Arrival to Years of Consent: And they lived in that State till she was near seventeen Years of Age, and then she dies without Issue.
The Court of Chancery decreed the Profits of the Estate to the Duke for Life.
Argument for the Appellant.—It was argued for the Appellant, That here was a precedent Copulative Condition; that if the Marriage take effect after sixteen, and there be Issue, then to the Duke; and neither of these being in the Case, the Decree is not consistent with the positive Words of the Settlement: For that the Duke was to have it upon no other Terms. That by this Settlement the Duke was thus provided for:
1. If the Marriage did not take effect, by Mary's Refusal or Taking another Husband, the Duke was to have 20000l.
[85] 2. If the Marriage did take effect, and Issue was had, then the Duke was to have an Estate for Life, but not otherwise. That the Words are plain and certain, that there must not only be a Marriage, but Issue Male between them. That tho' it should be agreed to be a good Marriage within the Intention of the Settlement, she living till after sixteen Years of Age, yet when a Condition Copulative consisting of several Branches (as this doth) is made Precedent to any Use or Trust, the intire Condition must be performed, or else the Use or Trust can never rise or take place: And it is not enough that one Part only be performed.
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