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to bar his estate tail, and convert it into a fee simple, that the persons in remainder and reversion should give their consent to the act. But although such consent be not given, yet an estate tail, and all the remainders over, and the reversion depending on it, may a
be barred by a private act. This point is fully established in an opinion given by the late Mr. Booth on the following case. 34. The Duke of Kingston being tenant for life Cases and
Opinions, under the will of Evelyn Duke of Kingston, with re- gvo vol.2.400. mainder to his first and other sons successively in tail male, remainder to Granville Earl Gower in tail male, with several remainders over : the Duke having no son, agreed with Lord Gower for the purchase of his interest in the estates thus devised, in consideration of 21,000l.; and in order to carry this agreement into execution, the Duke and Lord Gower, without the consent of any of the persons in remainder, applied for an act of parliament, stating the preceding facts, and stating that although Lord Gower was enabled by law, with the concurrence of the Duke, to bar the remainder in tail vested in him, and all the remainders, and the reversion expectant thereon, yet as the premises agreed to be purchased by the Duke were limited, after his death, to his first and other sons in tail male, they could not be vested in him in fee simple, without the aid of an act of parliament.
A private act was accordingly obtained, by which it was enacted, that the estates in question should be vested in two persons, and their heirs, freed from the uses declared in the late Duke's will, and should be to the use of the then Duke and his heirs ; and other estates of equal or greater value were vested in two persons, to the use of the Duke of Kingston for life, remainder to trustees to preserve contingent remain.
ders, remainder to his first and other sons successively in tail male, remainder to the Duke in fee, with a general saving of the rights of all persons, except the Duke and his heirs, and the first and other sons of his body, and their heirs male, and Lord Gower and the heirs male of his body, and all persons claiming any estate in the premises under the will of Evelyn Duke of Kingston.
The Duke of Kingston being desirous of selling one of the estates vested in him in fee under this act, a doubt was suggested touching the effect of the act, with respect to the persons claiming under the late Duke's will, in remainder, expectant on the determination of the estate tail vested in Lord. Gower ; how far their rights and interests were barred by the act; as well in the estate whereof the uses were discharged by the act, as in the estates settled by way of equivalent; the same being limited to the Duke in fee simple, upon failure of issue male of his own body, and not to the uses limited in the will.
In answer to this objection, Mr. Booth gave an opinion, that even supposing the rules and orders of the House of Peers, with respect to summoning all persons concerned in interest to appear and consent, were not observed, this would not invalidate the act, for either House of Parliament might dispense with their own orders, whenever they thought fit; but here was no grievance, no irregularity. The rights of the persons in remainder, after Lord Gower's estate tail, were of no value, since by a common recovery duly suffered, those rights could be annihilated in the next term; as the parties were obliged to go to parliament, they were advised, and rightly advised, that to suffer four recoveries (for the lands lay in four counties) would be to go to a needless expence : for
that in a case where parliamentary assistance was, on other accounts, indispensably necessary, there the parliament would so frame their words, which were to become a law, as to have the same force and operation, and to bar all rights that would be barred by a common recovery. Frustra fit per plura quod fieri potest per pauciora, was a rule of equity, reason, and good sense,
35. The docrine here laid down by Mr. Booth has been fully confirmed by a modern case, in which the Court of Chancery held that a private áct would bar an estate tail, and all remainders expectant thereon, and also the reversion, although the rights of the remainder-men were not excepted in the saving · 36. Robert Westby being tenant for life, under a Westby v. settlement of an estate in Lancashire, with remainder Kiernan,
Amb. 697. in fee to four persons, as heirs at law to the settlor; and being tenant in tail of another estate in Yorkshire, with remainders over, under which the defendant John Westby claimed; and having occasion for money to pay debts, and one of the heirs at law being an infant, a private act was obtained in 1731, on the application 4 Geo. 2. of Robert Westby, and the heirs at law, by which a part of the Lancashire estate was vested in trustees, to be sold for payment of Robert Westby's debts : and the Yorkshire estate was vested in trustees, to the use of Robert Westby for life, with limitations over, as in the settlement; with a power for Robert Westby, in case of failure of issue male of his body, to charge the Lancashire.estate with a sum of money. The saving clause at the end of the act saved the rights of all persons, except those of Robert Westby, of the reversioners of the Lancashité estate, and of the heirs and issues of Thomas Westby : but no ex
ception of the heirs or issue of - Westby, under whom the defendant John Westby claimed.
Robert Westby, by deed in 1732, executed his power, and died without issue, having devised the money charged by the execution of the power to his executors, upon several trusts.
Upon a bill filed by the executors to have the sums raised which were charged by Robert Westby, a question arose, whether the power given by the act of parliament, to charge the Yorkshire estate, could take place against the defendant John Westby, who claimed under Westby, the person entitled in remainder upon the death of Robert Westby without issue. Lord Apsley was clearly of opinion, that Robert Westby being tenant in tail of the Yorkshire estate, the right of those in remainder was, and was meant to be barred by the act; and that there was no occasion to except their rights, as was done in other cases where the act passes upon the application of a tenant for life ; for Robert Westby being tenant in
tail, might have barred the remainder by a recovery: infra, Ø 38. and therefore this case differed from that of the Duke
of Somerset, who procured an act of parliament for the exchange of livings : he was only tenant for life; and the right of those in remainder not being excepted out of the saving clause, they were not bound by
the act. But not a
37. But where a tenant for life enters into an agreeRemainder after an Es- ment to convey the fee simple, and a private act is tate for Life.
passed for establishing such agreement, in which is a saving of the rights of all persons not parties to the act, it will not affect the persons entitled to the re
mainder expectant on the life estate. Provost of Eton v.
38. Thus, in the case alluded to by Lord Apsley Ep. Winton, in Westby v. Kiernan, it appeared that Charles Duke
of Somerset having the honour of Petworth, was desirous of acquiring the rectory appendant to it, which belonged to Eton College ; and not having any benefice or advowson whereby he could tempt the College to give him the rectory of Petworth in exchange, he applied to and prevailed on the Crown to give to the college the advowson of Worplesdon, and the Duke in return agreed to give to the Crown the rectory of Overblowes as an equivalent. Whereupon it was agreed that the advowson of Worplesdon should be vested in Eton College, the rectory of Petworth in the Duke, and the rectory of Overblowes in the Crown, for ever.
This agreement was confirmed by a private act of parliament in 4 & 5 Will. and Mary, whereby it was enacted, that the advowson of Overblowes should be, and thereby was vested and settled in their Majesties and their successors, in right of their Crown, for ever: that the advowson of Worplesdon should be settled and vested in the provost and college of Eton, and their successors, for ever; and that the advowson of Petworth should be, and was thereby vested in the Duke and Duchess of Somerset and their heirs, with a saving of the rights of all persons (other than their Majesties, &c. the Duke and Duchess of Somerset and their heirs, and Eton College and their successors,) to the said advowsons, or any of them.
It was afterwards discovered, that by a settlement made previous to this act, the rectory of Overblowes was limited to the use of the Duchess of Somerset for life, remainder to her son Algernon Earl of Hertford in tail male, remainder to the issue female of the Duchess; and that Lord Hertford having died without issue male, the rectory vested in his sister Lady Catherine, who married Sir W. Wyndham, and died