Objection answered.—As to the Objection from the Intention of the Parties, 'twas answered, That no such Intention did appear, or reasonably could be collected from any Thing in this Deed or Will: And it would be too great a Violence to the Words, to break that Condition into two, which is but one, according to the plain and natural Contexture and Sense of it.
Objection.—It hath been said, That if the Duke cannot take an Estate for Life in the Trust, unless he had Issue Male by the Duchess, then she her self could not take for Life by that Trust, unless there were Issue Male, for that their Estates are limited together; and then the Consequence would be, That if there were Daughters and no Sons, the Daughters would have the Trust of the Estate in their Mother's Life-Time, and their Mother nothing, which could not be the Intent of Sir Henry Wood.
Answered.—ANSWERED. To this it was answered, That the same arises from a plain Mistake, and a Supposition that the Daughters (if any) should take, tho' there never were a Son; whereas the Limitation to the Daughters is under the same precedent Condition, as the Limitation to the Duke and Duchess is: For the precedent Copulative Condition ushers in the whole Limitation of the Trust, so that the Trust to the Daughters could no more arise, without Issue Male born, than the Trust to the Duke and Duchess.
Objection answered.—And whereas 'tis pretended, That at this Rate the Duke and Duchess were to have had no Subsistence till the Birth of Issue Male, which might be many Years: It was answered, That this was a plain Mistake of the Law: For this Trust being by the Deed and Will thus limited upon this precedent Condition of having Issue Male, they, whose Estates in this Trust are thus limited upon this Condition, can take nothing till the Condition be performed by Marriage and Issue Male: And then by the Rules of Law, till some of those Persons to whom the Trust was limited could take, the Trust of the Estate descends to the Heir at Law, and she was intitled to the Profits, till the Precedent Condition should be performed, or become impossible: And if the Condition had been performed, the Trusts would have taken effect; and being not performed, but becoming impossible by the Duchess's Death before she had Issue, the subsequent Trusts take effect upon her [86] Death. Besides that, it is pursuant to the Rules of the Common Law, which gives to the Husband no Estate for Life in the Wife's Inheritance, unless he have Issue by her born alive; wherefore it was prayed that the Decree might be reversed.
Argument for the Respondent.—Then it was argued on the Behalf of the Respondent, That Sir Henry Wood by the same Settlement directs, that if the Duke died before his Marriage with her, then the Trustees should dispose of the Profits of the Premisses to the Lord George Palmer, the Duke's Brother (in Case the Brother married her) and to the said Mary for their Lives, and the Life of the longer Liver of them; and from and after the Decease of the Survivor of them, then to their Issue in Tail Male, &c. without adding any Words of a preceding Condition; and yet says, In like Manner, and for the like Estates, as he had appointed for his said Daughter and the Duke, in Case of their Marriage: Which plainly evidences his Intention to be, That the said Duke and the Lady Mary should have the Profits during their Lives, altho' they should never have Issue Male, as the Brother would have had in case he had married her.
Then 'twas urged, That Sir Henry Wood's Appointing the Surplus of the Profits, over and above her said Maintenance, for the Benefit of the Duke until his Marriage, shows the Intent: For that it can't be imagined that he should be provided for before his Marriage, and left destitute of all Support after it, unless he had Issue Male by her. Nay, his Intention of Kindness to the Duke was proved further, by giving him 20000l. in case she refused to marry him, or died before her Marriage.
Objection answered.—And as to the Pretence of its being a Condition precedent, it was answered, That unless that Paragraph be made to interfere with it self, the Duke will be intitled to an Estate for Life, if there were no other Clause in the Deed.
For first, It's said, That for a more full and ample Provision for the said Duke
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