case John carrack son and heir of and errington decease thomas Lorraine and  jane his wife John Robson and margaret his wife which say whether jane  margaret and Frances errington one of the defendant be the four sister and  coheir of edward errington decease plaintiff thomas errington William  errington Frances errington spinster richard ridley and nicholas Fenwick esqr  and christopher Soulby son and heir of ralph Soulby which say Mr ridley Mr  Fenwick and Mr Soulby be only trustee of the estate in question defendant S c  p wms in court Lord chancellor Edward errington be cousin and heir at law to  William errington a infant before he come into possession of the estate in  question do in the lifetime of the say infant by indenture date the that of  October covenant to levy a fine of the say estate to Mr Ridley and Mr Fenwick  and their heir and by another indenture hear date the that of the say October  it be declare and agree that the say mosely report er p fine shall enure to  the use of the say Edward errington for life without impeachment of waste  remainder to Ralph Soulby the defendant Soulbys late father and his heir to  preserve contingent use remainder to the first and other son of Edward  errington in tail male remainder to Thomas errington for his life without  impeachment of waste and from and after the determination of that estate then  to the use of the say Ralph Soulby and his heir for the life of the say Thomas  errington in trust to preserve contingent use and estate remainder to the  first and other son of Thomas errington in tail male remainder to William  errington for life without impeachment of waste remainder to trustee to  preserve contingent use remainder to the first and other son of the say  William errington in tail mosely report male with remainder to the say Edward  errington in fee the say fine be accord levy and the say infant die in the  year without issue whereupon the estate descend on the say Edward errington as  his heir at law who enter and become seize thereof and be desirous to supply  any defect which may be in the say settlement he by indenture of lease and  release bear date the saint and d of April and by fine thereupon levy in  consideration of pound therein mention to be pay he by Ridley and Fenwick but  which be real the money of Thomas errington which Edward be indebt to he by  bind and for other consideration therein mention do grant and convey the  estate in question to Ridley and Fenwick and their heir to the use of he the  say Edward errington for his life with remainder to his first and other son in  tail male remainder over to Ridley and Fenwick and their heir who by indenture  execute the same day but date the day after declare that the pound be the  proper money of Thomas errington and that their name be make use of in trust  only for Thomas errington and his assign for his life without impeachment of  waste and from and after the determination of that estate then to the use of  the say Ralph Soulby and his heir during the life of the say Thomas in trust  to preserve the contingent use and estate remainder to the first and other son  of Thomas in tail male remainder to William errington for life without  impeachment of waste remainder to trustee to preserve contingent use remainder  to his first and every other son in tail male remainder to Edward errington in  fee the first of September the say Edward errington die without issue and  thereupon Thomas errington enter upon the estate in question and in or about  Michaelmas term the plaintiff exhibit their bill against the defendant thereby  inter all charge that Thomas and William errington be papist and therefore by  the statute of of will ch sect be disable to take by purchase any interest in  land and that the say Edward errington be infirm and weak in body and mind and  not sensible when he execute the say several conveyance and that the pound  consideration money be not pay but insert only in the say indenture of release  to colour the same or if pay that it be not a valuable consideration and that  the say deed seem to be gain by fraud and imposition and pray that they may be  put into possession of the premise or at least may be mosely report at liberty  to try their title at law without be prejudice by the say deed of William  errington by his answer insist that he be a protestant and upon two former  hear the court declare that there be a gross imposition on the say Edward  errington in obtain the say deed of settlement and therefore decree that it  shall be deliver up to the plaintiff to be cancel and that the receiver shall  deliver possession of the say estate to the coheir of Edward errington but the  say cause be reheard on the that of November theLord chancellor do think fit  and so order that the former order shall be reverse and his lordship declare  that he see no cause to set aside the settlement but then the question be to  who the estate shall go during the life of Thomas errington he be a papist and  have no issuemale whether to the right heir of Edward errington or to William  errington the remainderman and the counsel for the defendant William errington  argue that Edward errington have by the say settlement convey away the whole  estate subject to the use and trust express declare his heir at law be thereby  exclude from have any benefit of the estate till after all the particular  intermediate use be spend and therefore to raise a trust by implication in  favour of the heir at law during the life of Thomas errington out of the  suppose estate of Soulby the trustee to preserve the contingent use be to give  they a preference to the particular use to which they be express postpone by  Edward errington the grantor who have a absolute mosely report er p power over  the estate second where a estate be limit to a person incapable of take the  next remainder ought accord to the rule of law to take place immediate and  consequent Thomas errington be incapable to take by the say act and have no  issue William errington be entitle to be let into the perception of the profit  immediate upon the death of Edward errington without issue there be no  intervene equitable estate to prevent he for though the legal estate shall be  take to be in Soulby to preserve the contingent use which possible may never  arise yet since the trust annex to that estate be void to all other purpose it  ought not to be any impediment to hinder William errington from enjoy the  benefit of the estate nor to have any further effect than to preserve the  legal interest in the trustee for that contingent purpose for which alone it  can be good videlicet to let in the son of Thomas errington in case he shall  have any as in Lewis mosely report bowless case   b Thomas bowl covenant to  stand seize to the use of himself and of whether his intend wife for term of  their life and after their decease to the use of their first issuemale and the  heir male of such issue lawful beget and so over to the second three and four  issuemale c and for default of such issue to the use of the heir male of the  body of the say Thomas and whether lawful beget with remainder over it be  resolve that till issuemale Thomas and whether be seize of a estate in tail  and that then the estate shall open and they become tenant for life to let in  the son remainder nor ought the say legal estate to obstruct the limitation of  the settlement in any other respect much less to prefer the heir at law of the  grantor to William errington contrary to the grantors intent declare in the  deed three suppose there be a result trust during the life of Thomas errington  yet that trust do arise upon the settlement in which be good by estoppel and  Edward errington have a power to dispose of that trust which may very well and  do clear pass by the subsequent settlement of and consequent that trust estate  be no way necessary to preserve the contingent remainder under the settlement  of will now vest in William there be no body in be capable of take it before  he but the Lord chancellor decree in favour of the right heir of Edward  errington and declare that the act have make the trust for the benefit of  Thomas errington void do for so much defeat the intention of Edward errington  but that equity will see the rest of the settlement perform as far as the rule  of law will permit that the limitation of the premise to William errington be  b the express word of that settlement not to commence or take place until  after the death of the say Thomas errington and on failure of issuemale of his  body neither of which have yet happen and possible may not happen during the  lifetime of William errington and therefore in the mean time William have no  manner of right or title to the possession of the premise or the rend and  profit mosely report thereof and if the construction which William errington  contend for shall prevail the limitation to the son of Thomas errington if he  shall hereafter have any will be thereby defeat contrary to the express design  of the grantor for if a person be to take by purchase and the estate be once  go over to the next in remainder before that person come in be there be no  instance of the estate be ever bring back again though it be otherwise in case  of a descent be where land be give to a and the heir of his body remainder to  b in fee a die without issue b enter and a s wife be afterward deliver of a  son the son shall take he also allow that if a estate be devise to c for life  remainder to d and c happen to be a monk that d shall take immediate but that  this case be very different for between the remainder to Thomas errington and  the remainder to William errington there be several intermediate remainder  that will be destroy and be easy distinguish from Lewis bowless case for there  the contingent remainder take effect while the particular estate susbsisted  carter he allow that it be the intention of Edward errington that his heir  shall not take but as last in remainder but that they take by a new title give  they by the law the profit of the premise during the life of Thomas errington  be undisposed of whereas William errington have no title but by the settlement  whereby the grantor intend that he shall not take the estate while Thomas or  his issue male be alive show Parlm Cas vern cro Elizabeth case this decree be  affirm in parliament on Wednesday may the that the word purchase in the act of  the W ch be to be understand as it mosely report er p stand in opposition to  descent in a legal sense and a devise of land be within the meaning of the act  the word of which ought to be explain accord to their sense in law nay a real  estate devise only by construction of a court of equity be a purchase within  the act post can as where land be devise in trust to sell for payment of debt  and legacy and to pay the surplus money to a papist because such a beneficiary  and trust may by a bill in chancery mosely report compel the trustee to convey  over to he upon his pay of the debt and legacy both which point be adjudge by  the house of lord in the case of roper and Radcliff where the decree of Lord  Harcourt of the that of June be reverse Lord Derwentwater a papist be tenant  in tail previous to his marriage suffer a common recovery to the use of he and  his heir and afterward by lease and release he settle the land to the use of  himself for life remainder to trustee to preserve contingent remainder  remainder to his first and every other son of that marriage in tail male with  remainder over afterward Lord Derwentwater be attaint of treason and execute  and his son a infant put in his claim before the commissioner which be dismiss  by the opinion of four against three but this decree of dismission be reverse  on a appeal to the delegate Georg I by the opinion of four against Mr justice  fortescue that Lord Derwentwater be not a purchaser within the act of W ch for  the recovery be not a new acquisition but a modification of the family estate  and that the act can only be mean of new purchase and Mr justice Tracy be of  the same opinion upon a case that arise on a trial at the north assize in  which be refer to his determination