broughton vers langley Intr Trin W b r rot SC Lutw salk holt Eq Abr trust and  trustee c pl that Edward p plead and verdict Lutw post vol p under a  limitation to two and their heir in trust to permit I S to take the rend issue  and profit of the estate the use be execute in I S under a devise of the rend  issue and profit of a estate to a feme covert for life to be pay by the  executor of the devisor so as the husband shall not intermeddle with they Q  whether the legal estate vest in the feme or the executor the plaintiff  Burgundy Broughton bring a ejectment against the defendant Abraham Langley  upon a demise of three message twenty acre of land c lie at Hipperholme cum  Brigghouse in the parish of Halifax in the county of York make to the  plaintiff for five year to be compute from the first of march W c by John  Ramsden junior upon not guilty plead and a trial bad before Turton justice at  the summer assize hold at York W a special verdict be find videlicet that  before the time of the trespass and ejectment Robert Ramsden grandfather of  the say John Ramsden lessor of the plaintiff be seize of the c in fee and be  so seize the six of April be make his testament and thereby devise the message  c in question with their appurtenance in his word videlicet I do hereby give  devise and bequeathe unto John Stancliffe and Robert Ramsden my second son and  their heir and assign all those my message or tenement with the appurtenance  at NorwoodGreen and all the house building close land and ground to the same  belong now in the tenure of Jeremy Robinson and Robert Wilson or their assign  and I do hereby express publish and declare that the say John Stancliffe and  Robert Ramsden my son and their heir shall by force of this my last will and  testament stand and be seize of the say message c to all the use intent and  purpose herein after mention that be to say first of intent and purpose that  they shall permit and suffer George Ramsden my son to have receive Lord  Raymond and take the rend issue and profit of the say message c for and during  the term of his natural life and after his decease shall stand seize thereof  to the use of the heir of the body of the say George my son lawful beget and  to be beget and for default of such issue to the use of the say John Ramsden  and Robert my son and of their heir and assign for ever equal to be Lord  Raymond er p divide among they provide always and upon condition that if it  shall fortune the say George my son to marry a woman that shall have good fide  one or more hundred pound that then the say John Stancliffe and Robert Ramsden  my son and the say George shall have power by virtue of this my will to make a  jointure to and for such wife of per annum out of the same land c for every  hundred pound such wife shall have for her portion for the life of such wife  and after to the heir of the body of the say George upon such wife c then the  jury find further that the say Robert Ramsden the grandfather by his say  testament devise other tenement at NorwoodGreen in Hippeholme aforesaid to his  say son Robert Ramsden in fee in the occupation of Richard Riddlestone upon  condition that the say Robert Ramsden shall permit and suffer George Ramsden  and his heir peaceable to enjoy and occupy a close of land call paradise and  to take the rend issue and profit thereof to his own use and in default  thereof that the say George and his heir after any disturbance make by the say  Robert Ramsden or his heir in the enjoyment thereof shall enter into one  message c part of the tenement late mention and take the rend c thereof until  the say Robert Ramsden shall desist from such molestation and give security  not to disturb for the time to come then the jury find that the devisor bad  issue three son John Robert and George that the devisor die in that George  upon the death of his father enter into the tenement in question aforesaid and  take the rend and profit to his own use during his life that George in suffer  a common recovery to the use of himself and his heir that by indenture of  lease and release date the first and second of November will George convey the  premise in consideration of pay by the defendant to the defendant in fee that  he enter c and be seize prout law demand that George Ramsden die the first of  December then they find John Ramsden junior the lessor of the plaintiff heir  of the body of the say George Ramsden and they find lease entry and ouster and  make the common conclusion c the general question make upon this special  verdict be whether George Ramsden take a estate execute for his life by this  will or whether the estate remain in the trustee for his life and he have only  a trust not execute by the statute h c of use for it be admit that if George  Ramsden take a estate for his life execute he will by virtue Lord Raymond of  the subsequent clause which limit the use to the heir of his body be tenant in  tail execute and then the common recovery suffer by he will bar the entail and  consequent the plaintiff will have no title and the defendant title will be  good but if he be but beneficiary and trust for his life and the estate remain  in the trustee for the say time itR send for ante vin pl bro c c a will be  otherwise it be also admit by the plaintiff counsel that a devise send for  pale yellow on use b of land may be by express word to the use of another than  the devisee and that such use will be execute by the statute of the Henry for  that see Henry Fitzherbert devise that a devise by custom may be to a use and  then such use will be afterward execute by the say statute see also the word  of Henry cap more side and Ventr Burchett v Durdant and this case be argue at  the bar by Mr Cheatham and Mr Broderick for the plaintiff and by Mr Raymond  and Mr cheshire for the defendant and the counsel argue for the plaintiff that  George Ramsden bad but a trust in these land and that the estate in law remain  in the trustee for they say that though a devise may be by express word to the  use of another than the devisee yet without express word it can be aver to the  use of another than the devisee because it imply consideration in itself    leak and randal case then here by the first clause of the will I give and  bequeathe to John Stancliffe and Robert Ramsden and their heir the estate and  use pass to they in fee if there be not subsequent word express to convey the  use to George Ramsden and by they the subsequent word will not carry the use  to George Ramsden for the be that John Stancliffe and Robert Ramsden shall  stand seize to the intent that they shall permit and suffer George Ramsden to  receive the rend issue and profit for his life which word pass no estate to  George Ramsden but apparent show the intent of the devisor to be that the  trustee shall have the estate in law but that George Ramsden by their  permission shall receive the benefit of it for if he have intend that George  Ramsden shall have the estate in law he will not have say that the trustee  shall permit and suffer George Ramsden to take the profit c which he may do in  spite of they beside his intent appear more plain by Lord Raymond er p the  subsequent clause for when he devise the estate to the heir of the body he  vary the phrase and leaves out the word permit and suffer but say that the  trustee shall stand seize to the use c so that there he devise the very estate  far his intent appear more plain by the clause which give power to George  Ramsden and the trustee to make a jointure for if he do not intend that the  trustee shall have the estate it will be vain and ridiculous to appoint they  to join in the conveyance then several case be cite that the word permit and  suffer will Lord Raymond not pass a interest in the land but sound only in  covenant roll Abr light X pl Keilw Bulstr cro James Mod cro Elizabeth cro  James but for authority in point they rely upon the case of Burchett and  Dardant Ventr where h wicks devise land to John Higden and his heir upon trust  that he shall permit and suffer Robert Durdant during his life to take the  rend issue and profit Robert commit no waste and after his death to the heir  of the body of Robert Durdant then live and it be there hold in the exchequer  Chamber that the estate in law remain in I Higden and that Robert Durdant have  but a trust which be the same with the principal case and therefore for these  reason they pray judgement for the plaintiff e contra it be argue for the  defendant that this be a estate execute in George Ramsden by the statute of  the Henry to prove which they say that before the statute of Henry a use  confidence or trust be the same but now since the statute common parlance have  make a distinction between a use and a trust as if the first shall be execute  in possession by the say statute the other not though in truth a trust shall  be execute as well as a use as if a make a feoff to b in trust for c this  shall be execute by the statute but they urge that before the statute such a  limitation as that will have be a use and therefore consequent be the first  use it shall now be execute by the statute a use in I   b   light be define to  be a trust or confidence which do not issue out of the land but be quasi a  thing collateral annex in privity to the estate and to the person touch the  land videlicet that beneficiary and use shall take the profit and that the  terretenant shall convey estate accord to the direction of beneficiary and use  so that beneficiary and use have neither law in re nor ad remember but in  equity he have both where his remedy be by subpoena beneficiary and use may be  swear upon a inquest light sect there may be possession brother of a use  Edward but beneficiary and use can not distrain cattle damage pheasant upon  the land dier Plowd Keilw he can not release the rend to the tenant of the  land nor give licence to enter upon the land Henry he can not take the tree h  and all action ought to be bring in the name of the feoff Edward b now this  definition of a use agree with this devise to George Ramsden consider it as  before the Henry cap for here there be a confidence repose in the person of  John Stancliffe and Robert Ramsden and their heir it be annex in privity to  their estate but collateral to the land it be that George Ramsden shall take  the profit and of consequence that they shall convey estate accord to his  direction and accord to the interest that he have in the Lord Raymond use it  be the same thing as if the devisor have say I devise the land to trustee to  the use of George Ramsden or to the intent that George Ramsden shall take all  the land to his use for a grant of the rend issue and profit be a grant of the  land itself   light b Henry if it be so in a grant much more shall it be so in  a devise more Griffith v smith Leon pl Leon hob Balder v Blackburne hut more  Yelvert carpenter v Collins so pasch will b r between south and Allen salk  comb in ejectment upon a special verdict the case be that I S seize of the  land in question in fee car devise all the rend issue and profit of they to  Sarah burgess wife of John burgess for life to be pay by his executor so as  the husband of Sarah burgess shall not intermeddle with they the question be  whether Sarah burgess by this devise have the land themselves or whether the  executor be trustee for her Rokeby and Samuel Eyre justice hold that the  executor be trustee but holt chief justice hold that this be a express devise  to the wife herself and that the subsequent word can not restrain it wherefore  the counsel for the defendant conclude that a devise of the profit be the same  as a devise of the land but that a devise of the land to trustee to the intent  that George Ramsden Lord Raymond er p shall have and take the land will have  be a use execute in George Ramsden and therefore that this devise to the  trustee to the intent that George Ramsden shall take the profit will be a use  execute in George Ramsden they compare this case to the case pasch Henry pl  where in a deed the covenantor declare that his recoverees have suffer a  common recovery before shall suffer Giles to take the profit of the land it be  hold a use in Giles so Henry Fitzherbert devise a devise that one of the three  feoff shall receive the profit hold a confidence which be the same with a use  so in this case before the statute of Henry this will have be a use in George  Ramsden and John Stancliffe and Robert Ramsden will have be seize of these  land to the use or in trust for George Ramsden and then it will be execute in  possession by the express word of the Henry cap which be that where any person  shall be seize of any manor land c to the use confidence or trust of another  in fee tail or for life such use shall be execute in possession then they give  answer to the objection make of the other side and first to the intent of the  devisor because he intend that this shall be only a trust they answer that it  be true that it be say in several book that the intent will govern the raise  of use Perk sect c but that which be intend by the say book be that the judge  will not adjudge a use or interest to pass contrary to the intent of the party  but there be no authority in any book that the intent of the party can hinder  the operation of the law Lord Raymond and in this case of the statute in the  execution of the use that be raise if a man covenant to stand seize to the use  of himself for life without impeachment of waste and after his decease to the  use of the heir male of his body the man intent be plain to have but a estate  for his life yet the law supervenes his intention and make he tenant in tail  vent Pybus v Mitford where hale chief justice say express that the intent of  the party can control the operation of the law as to the objection make from  the power they say that it will not be void but that it be a prudent caution  make by the devisor that the son shall not marry without the consent of friend  for there the trustee though the estate be execute in George Ramsden may  execute the power and join in make of the jointure and when it shall be make  the jointuress will be in by the will as to the case of Burchett v Durdant  cite on the other side out of vent they say that the principal point in the  say case be whether the remainder limit to the heir of Robert Durdant now live  vest in George Durdant or be contingent videlicet whether that be a  description story of the person and it be hold that it be and that the  remainder vest in George Durdant and therefore the other question whether the  estate for life be execute in Robert Durdant or not be entire immaterial for  be it so or not Robert Dardant be but tenant for life and therefore his  recovery will not bar George Durdant nor his heir c see the say case sir t  Jones Ventr keb raym and for these reason the counsel for the defendant  conclude that this be a use execute in George Ramsden c and therefore that  judgement ought to be give for the defendant and of that opinion be the whole  court and they agree in omnibus with the defendant counsel and their answer to  the objection make by the plaintiff counsel they say that a use and trust as  to the word themselves be of the same purport as to the execution by the say  statute for if a man make a feoff in fee to a in trust to permit b to take the  rend issue and profit this will be a use execute as well as if a have make use  of the word use they approve also of the answer give to the objection that the  intent appear by the power and say that this be a good precedent to keep child  dutiful to their relation when they can settle jointure upon their marriage  without their concurrence and they say that if they construe this limitation  only a trust there will be strange debate for if George shall have child then  the trustee will be seize in fee in trust for George for life and the issue  will be tenant in tail which will be strange therefore it will be better to  construe it one entire use execute by the statute and judgement be give for  the defendant Lord Raymond er p