atkins case green a infant versus ekins Burnaby and Elizabeth his wife and  other December see Hodgson v earl of Bective h m Shelley v Shelley lr Eq  chamberlain v Brockett lr Ch S c p W n f SC cite Ves the question be whether  the interest of the residue of g s personal estate from the death of Frances  his daughter to the time it will vest in the plaintiff his grandson must be  accumulate or whether it be a interest undisposed of and go to the next of kin  of the testator Lord Hardwicke be of opinion that the interest must accumulate  and be a part of the residue till the devise to the son of Mr Burnaby vest a  bill be bring by the plaintiff who be the old son of the defendant Burnaby by  Elizabeth his wife who be the only daughter of Mr green decease by his first  wife to have the trust of the will of Mr green his grandfather perform and to  have marriage article make before the marriage of his father and mother carry  into execution for his benefit upon the follow case Mr green who be a brewer  have issue by his first wife the defendant Elizabeth who in his lifetime have  private and without his consent marry Mr Burnaby and by his second wife have  issue another daughter name Frances who at the time of make this will and at  his death be a infant and have a very considerable real estate and a very  large personal estate devise several particular legacy to his wife and to mrs  Burnaby and his daughter Frances and give direction to have his trade carry on  after his death for the benefit of those who shall be entitle to the residue  of his estate and all the residue of his personal estate he devise to any son  he shall have by his wife at his age of twentyone and if no son then to atkins  er p his daughter Frances to be pay to her at her age of twentyone or marriage  but if it shall happen that his daughter Frances shall depart this life before  twentyone or marriage and he shall have no other daughter bear of his second  wife who shall attain twentyone or marriage then and in such case if his  daughter Elizabeth Burnaby shall have issue of her body one or more son or son  he give and bequeathe the residue of his personal estate to such son of his  say daughter as shall first attain the age of twentyone but if his daughter  shall have no such son or son or have such son or son none shall attain the  age of twentyone then and in such case he give and bequeathe the residue of  his personal estate to William ekins pier a defendant in this cause subject to  the payment of to the daughter of his daughter Burnaby in manner therein  mention Mr green soon after make this will die and within half a year after  his death Frances his daughter die a infant and the plaintiff be entitle when  of age to the residue of this estate bring his bill and upon this part of the  case the only question be whether the interest of the residue of this personal  estate from the death of Frances the daughter to the time it will vest in the  plaintiff or any atkins other son of mrs Burnaby must be accumulate and wait  on the contingency or whether as the defendant contend it be a interest  undisposed of and go to the next of kin of Mr green the testator as to the  marriage article the case be mrs Elizabeth Burnaby be under a agreement in  write make on her father and mother marriage entitle to the sum of pound and  have also expectance on the death of her father and Mr Burnabys marriage with  her be private he just before the marriage draw and sign a very short paper by  way of article whereby it be agree that every thing which shall come to mrs  Burnaby by her father death or otherwise shall go to they for their respective  life and after the death of the survivor to the heir of the body of mrs  Burnaby by he beget for the old son the plaintiff it be insist that these  article ought to be execute for his benefit and a settlement make on the old  and other son as in all case of this kind have be do but the old son be under  the grandfather will entitle to a very great estate and the young child of Mr  Burnaby have a very small or no provision it be insist that the court in this  case will so construe the article that the whole shall go to they or that a  provision at least shall be make for they out of this fund as to the point of  the residue Mr solicitor general insist that the word residue carry only that  which will be so at the time when the will take effect the death of the  testator for if the testator daughter have then be of age a immediate division  may have be make of it and the remainder man can take no more under this  description than she will have do that if this be land it be clear that till  the contingency happen the estate will descend to the heir and he will have  the intermediate profit so where a particular fund be give on a future  contingency the legatee can have it till that happen and till then it be  undisposed of and the next of kin must take it ex provision law for this  purpose he cite the case of chapman versus blisset beforeLord Talbot case in  his time where the testator devise the residue per word de prsenti no future  interest which accrue after the will take place can be part of it and whether  it vest then or on a contingency be not material for that be still the thing  give this residue and the profit of it be distinct interest and for this  purpose he cite Nicholls versus Osborn p will if a particular legacy be give  on a contingency no interest be due but the interest shall sink into the  residuum till that atkins happen and so hold in the case of Houghton vers  Harrison before your lordship about a year ago vide ante this hold where a  legacy be vest to loosen in going to be except only in the case of legacy to  child where it be allow for maintenance for it have not be extend to  grandchild vide atk a residue be no other than a particular legacy of the  several thing which the testator die possess of undisposed and be the same as  if particular mention and enumerate therefore this must follow the rule of  other legacy one legatee of this same residue can take no more by that  description than another yet if construe otherwise as the contingency on which  they take arise at different time what they take will be different if it be  undisposed it be contend that this be the interest from the death atkins er p  of Frances it must be distribute to those who be the next of kin of the  testator at her death and so her next of kin be exclude from any share because  it be a contingency to arise on her death Lord chancellor this last point  ought clear to be overrule for in all distribution the time of the death vest  the interest though the equitable intestacy happen by contingency after Edward  and freeman Eq Cas Abr have be cite as a case in point to prove this and  Studholm versus Hodgson before Lord Talbot July p wms be cite as in point that  the interest shall accumulate as part of the residue tissen v tissen p W  Nicholls v Osborn p W butler v butler post vol Trevannion v Vivian Ves  chaworth v Hooper bro Charles Rep Hawkins v Coombe ibidem during the life of  Frances the daughter the profit vest in her because the residue do so as it be  a legacy Payable at a future time and divest on the contingency and she be a  daughter and this her portion he decree they to her representative as to the  rest of the profit which have and will accrue till the devise to the son of Mr  Burnaby vest I be of opinion that the interest and profit must be consider as  a part of the residue and must accumulate a man may die partly testate and  partly intestate in this court though not at law but there be a great  difference between a particular distinct part of the personal estate and the  whole residue of it for when the whole be give it be a contradiction in term  to say any part of that estate be undisposed atkins for whatever be claim be  claim as a part of his estate and yet the whole residue of that estate be give  away the residue of a personal estate be nothing fix but a fluctuate interest  and if the personal estate be increase by any event after the death of the  testator it be part of the residue and will pass as such why then not the  interest of that residue for that interest be asset and part of the estate for  if legacy be give Payable at a future time and at the death of the testator  the asset be deficient but by profit in the mean time accrueing be become  after sufficient all the legacy will be pay for those profit be part of the  personal estate and if so be part of the residue in this case see heath v very  post vol the only plausible argument e contra be hat which be draw from real  estate but there be many material difference between the profit of a real and  personal estate for in the case of real estate the thing itself be not dispose  of but descend in the mean time and the heir have therefore a chattel interest  till the contingency happen and carry the profit with it Hayward v  Stillingfleet ante vol but personal estate do not descend or go to the next of  kin but be vest in the executor and this be aquestion only relate to the trust  of it where the intent of the testator must prevail another difference between  they be that in the one case the rend never can become art of the personal  estate but the profit of the personal estate be the estate itself the testator  have consider this as his personal estate after his death by givingdirections  how to carry on the trade c and the case of Studholm and Hodgson be in point  and therefore I do accord decree the profit to accumulate his lordship decree  that the clear surplus of the testator personal estate will belong to the  plaintiff in case he shall attain his age of year and that all the interest  income and profit that have arise or shall arise therefrom in the mean time  from the death of Frances ought from time to time to accumulate be add to and  go along with such surplus and in case the plaintiff shall die before his age  of ear the say surplus together with such interest income and profit ought to  go and belong to such person or person as shall be entitle thereto accord to  the contingency in the say will Reg lib a fol so butler v butler post vol  Trevannion v Vivian Ves as to the question relate to the pound on Mr Burnabys  marriage article I think this be a point of more difficulty for the old son  have a very great provision and the young child have none the rule of this  court where article of this kind be make relate to real estate have be to  decree a strict settlement this be a sum of money not article to be lie out in  land those rule therefore do not extend to this case for such a settlement can  be make it must therefore be settle as personal estate to settle this as land  be give the old son a great interest in it than he will have if it be land for  in real estate he will only have a contingency with remainder over here it  will vest absolute in he atkins it will therefore be draw a rule in this case  by analogy from real estate to defeat the intent of the party by the legal  construction of these article this money be vest in mrs Burnaby absolute and  if that be the legal construction I can make any other to answer the intent  atkins er p why shall I if the husband and wife will consent to have this  settle on the young child the only objection be that by hold this to be a  absolute interest in the wife you vest it in the husband but this be not so  here for the limitation be to the heir of the wife and therefore vest in her  only and not in he I may compare it to the case where by settlement of land  the wife have a estate ex provision man the court have refuse to interpose to  settle this estate otherwise because the intent will prevail since she can  alien by the statute of the that of Henry vide honour v honour p W Whateley v  Kemp cite Ves highway v banner bro Charles Rep therefore Mr and mrs Burnaby  consent the chancellor decree this to be settle on the young child and as to  the say principal sum of pound the same by a agreement enter into before the  marriage of the say defendant Burnaby and his wife be agree to be settle on  the say Burnaby for his life and on the say Elizabeth for her life and  afterward upon the heir of the body of the say Elizabeth by the say Burnaby by  mean whereof the say sum of pound be in point of law vest in the say Elizabeth  and his lordship not hold it reasonable in this case where so ample a  provision be make for the old son of the say marriage that a different  construction shall be make thereof in equity and the say Elizabeth now  personal desire that the say sum of pound shall after the death of her and her  husband be secure and settle for the benefit of her child exclusive of such  child as shall be entitle to the real estate and the residue of the personal  estate of the say testator his lordship decree accord Reg lib a foe