case SABBARTON versus SABBARTON Novem Joseph Sabbarton be seize of a real  estate and possess of a personal estate in bank stock and orphan stock by will  date April devise his real estate and stock to trustee and their heir executor  c in trust to pay the rend and profit to Catherine Corr for life and if she  marry Benjamin Sabbarton then in trust after her decease to pay the rend and  profit to he for life and after both their death in trust to the first and  every other son of they two in tail male and for want of such issue to their  daughter equal to be divide between they and for want of such issue then in  trust for the issue male or f male of the survivor of they equal to be divide  between they and in default of issue of the say marriage then in trust for the  issue of the survivor of they and if neither of they leave issue then in trust  for his sister Sarah Kidwell for life and after her decease to the use of all  and every the child and child of his brother John Sabbarton which shall be  live at his death or his wife shall be ensient of and shall attain the age of  twentyone and to the heir executor administrator and assign of such child or  child share and share alike as they shall respective attain their age of  twentyone and in default of such child c then to his own right heir Benjamin  and Catherine intermarry but have no issue between they Catherine survive but  have no issue and devise to the defendant the question be between the  plaintiff who be child to John case tempt Talbot Sabbarton and the defendant  who claim under the devise of Catherine whether the limitation of the personal  estate to Benjamin and Catherine and the issue of the survivor of they do not  create a estate tail in Catherine who survive and consequent the limitation  over of a personalty after a estate tail void Mr solicitor general for the  plaintiff cite the case of Atkinson and Hutchinson hear the second of may last  where the before Lord Talbot p will devise be to trustee in trust for his wife  so long as she shall remain unmarried then in trust for such child and child  as he shall leave at his death equal to be divide between they and if either  of they die without issue then his share to go to the survivor and if both die  without issue then in trust for the defendant Hutchinson he leave two daughter  who both die without issue under age and there the word die without issue be  hold to be issue live all the death and so the limitation to Hutchinson allow  to be good so in the case of do versus Merrefield hear at the bolls the d of  October where the devise be to his brother John for life then to such person  as he shall marry for her jointure and after her death to the heir of the body  of his brother John and the executor administrator and assign of such heir  during the residue of the term and for default of such issue of his brother  John then to Henry do this limitation to Henry be hold good the word be take  to be heir live at his death forth versus chapman p will hear by the Lord  Macclesfield Higgins versus Dowler vern Lord chancellor I do not see how it be  possible to maintain this limitation to the child of John Sabbarton executory  devise be favour in order to support the party intent but still they must not  exceed the rule the compass of a life be hold to be a reasonable time for a  contingency to happen in so in the case of Massenburgh versus ash vern case  tempt Talbot twentyone year after a life be hold to be a reasonable time but a  contingency to arise after the determination of case tempt Talbot er p a  estate tail be too remote so that the question must be here whether the word  mean a general failure of issue or such a failure as be to happen within the  compass of a life the real and personal estate be both devise to the same  trustee and the limitation be the same the estate be first limit to Benjamin  and Catherine for their life remainder to their first and other son remainder  to the daughter and for want of such issue then in trust for the issue male or  female of the survivor which latter word do clear make a estate tail accord to  king and Mellings case vent they take in both son and daughter and grandchild  in infinitum it have be endeavour to confine this limitation to the issue live  at the death of the survivor but it can never be imagine that these limitation  to John Sabbartons child be intend to take effect before the determination of  the former and they plain carry a estate tail these latter must be void it  have be also object that the word leave issue must be construe issue live at  the death but still we must remember that this be a complicate devise both of  the real and personal estate and in case of the real this limitation to the  issue of the survivor make Benjamin and Catherine tenant in tail and the  personal estate be intend to go and be limit in the same manner as the real  must likewise be a estate tail and so the limitation of it after that void the  word leave be only to connect the clause and show what be to become of the  estate after the determination of the former limitation the word in the case  of forth and chapman that case be this one Walter gore by will devise thus all  his estate real and personal he give to I chapman in trust only the lease of  the ground he hold of the school of Bangor for the use of his nephew William  gore and Walter gore during the term of the lease as hereafter limit and have  give several legacy declare his will as to the remainder of the estate as well  as his freehold house in shaw court with all the rest of his good and chattel  whatsoever and wheresoever he give to his nephew William gore and if either of  his nephew William or Walter shall depart this life and leave no issue of  their respective body then he give the say leasehold premise to the daughter  of his brother William gore and the child of his sister Sibley price upon  which the question arise whether the limitation over of the leasehold premise  to the child of the devisor brother and sister be void as too remote the  master of the roll sir Jos Jekyll be of opinion and decree that the devise  over be void but on a appeal the Lord chancellor Parker hold it good for that  there can be no difference between the word without leave issue which be  construe to mean issue at his death and leave no issue but what make it  infinite strong be that the fact happen to be that the testator have a real  and leasehold estate and devise all his estate as well freehold as good and  chattel to a and if a die leave no issue then to b and then the say word in  the same will be construe to make the several devise good and to give the  first devisee a estate tail in the freehold and but a estate during his life  in the leasehold Atkinson v Hutchinson sup be different and carry a intent in  the testator different from the intent in this case in that of Atkinson versus  Hutchinson there be no precedent limitation in tail as there be here and in  the other of do versus Merrefield the contingency of the brother have issue be  to arise within the compass of a life and there be no case tempt Talbot word  carry a general failure of issue by reason of the word executor administrator  and assign which restrain the word heir to immediate heir and that contingency  never happen the limitation over be allow to be good and so dismiss the  plaintiff bill c see this case state more at large with the opinion of the  judqes of the king bench c towards the latter end of this book post