case Lord glenorchy versus Bosville S c wh t l c that ed a devise land to his  sister b and c and their heir and assign upon trust that until his  granddaughter d shall marry or die to receive the profit and thereout to pay  her pound a year for her maintenance the residue to pay debt and legacy after  payment thereof in trust for the say d and upon further trust that if she live  to marry a protestant of the church of England and at the time of such  marriage be of the age of twentyone or upward or if under that age such  marriage be with the consent of the say b then to convey with all convenient  speed after such marriage to the use of the say d for life sans waste  voluntary waste in house except remainder to her husband for life remainder to  the issue of her body with remainder over and upon further trust that if the  say d die unmarried then to the use of b for life remainder to the son of his  other granddaughter e in tail remainder to the defendant c remainder to his  first and other son remainder to a s right heir and upon further trust that if  d marry not accord to the will then upon such marriage to convey to trustee as  to one moiety to the use of d for life then to trustee to preserve contingent  remainder remainder to her first and every other son be a protestant with  remainder over and as to the other moiety to the son of his daughter e in like  manner a die d attain her full age and upon a treaty of marriage with f apply  to b and c for a conveyance to herself for life remainder to her intend  husband for life remainder to the issue of her body b execute such conveyance  but c refuse d suffer a recovery of the whole to the use of herself in fee and  then marry f who make a considerable settlement upon her she covenant to  settle her estate upon husband and wife remainder to the first c son in tail  remainder to survivor of husband and wife in fee they bring a bill to compel c  to convey r decree not a estate tail to d but a estate for life sans waste ut  above as be the intent of a upon the will with remainder over in strict  settlement sir Thomas Pershall devise all his real estate to his sister  whether Pershall and Robert Bosville and their heir and assign upon trust that  till his granddaughter Arabella case tempt Talbot Pershall marry or die to  receive the rend and profit thereof and out of it to pay her pound a year for  her maintenance and as to the residue to pay his debt and legacy and after the  payment thereof then in trust for his say granddaughter and upon further trust  that if she live to marry a protestant of the church of England and at the  time of such marriage be of the age of twentyone or upward or if under the age  of twentyone and such marriage be with the consent of her aunt the say whether  Pershall then to convey the say estate with all convenient speed after such  marriage to the use of the say Arabella for life without impeachment of waste  voluntary waste in house except remainder after her death to her husband for  life remainder to the issue of her body with several remainder over and upon  further trust that if the say Arabella Pershall die unmarried then to the use  of the say whether Pershall for life remainder to the son of his other  granddaughter Francis Ireland in tail remainder to Mr Bosville the defendant  for life remainder to his first and other son remainder to the testator right  heir and upon further trust that if his granddaughter marry not accord to the  direction of his will then upon such marriage to convey the say estate to  trustee as to one moiety thereof to the use of the say Arabella for life  remainder to trustee to preserve contingent remainder remainder to her first  and every other son be a protestant with several remainder over and as to the  other moiety to his daughter Ireland son in like manner case tempt Talbot sir  Thomas Pershall die in the year and mrs Arabella Pershall in attain her full  age and upon a treaty of marriage in she apply to the trustee for a conveyance  of the estate to herself for life remainder to her intend husband for life  remainder to the issue of her body and such conveyance be execute by one of  the trustee but Mr Bosville the other trustee who be also a remainderman  refuse to convey however she have by this conveyance a legal estate tail in  one moiety and a equitable estate tail in the other moiety suffer a recovery  to the use of herself in fee and in marry the plaintiff the Lord glenorchy who  make a considerable settlement upon her and as to her own estate she covenant  to settle case tempt Talbot er p it upon the Lord glenorchy and herself for  life remainder to the first and every other son of the marriage in tail male  and upon failure of such issue to the survivor of the say husband and wife in  fee the bill be to have a conveyance of the moiety of the say trust estate  from Mr Bosville to such use as be limit by her in the say covenant and the  principal question be whether under the say will the lady glenorchy be tenant  for life or in tail upon which two other question arise videlicet first  whether the word in the will in a immediate devise of a legal estate will have  carry a estate tail second if so whether the court will make any difference  between a legal title and a trust estate executory Lord chancellor t shall  upon the first question make no difficulty of determine it a estate tail have  this be a immediate devise but when you apply to this court for the carry a  trust estate into execution the doubt be whether we shall not vary from the  rule of law to follow the testator intent which will also bring on another  question what be the testator intent in the present case I upon the second  question it be argue for the case tempt Talbot plaintiff that the lady  glenorchy be under this will entitle to a estate tail in equity for this court  put the same construction upon limitation of trust in equity as the law do  upon legal estate and that to prevent confusion this doctrine be lie down with  the strong reason by the earl of Nottingham in the duke of Norfolk case S c Pd  Cas in Chanc and the authority of bail versus Coleman vern p will S c where a  trust to one for life remainder to the heir male of his body be hold a estate  tail have never yet be question so it be hold in legate and jewel case vern  but more full p will S c report in Abr Eq can where money be give to be lie  out in land to one for life and after his decease to his heir male and the  heir male of the body of every such heir male several and successive one after  another and a case be make for the opinion of the judge as of a legal estate  they certify it to be a estate tail hold by three judge against one to be a  estate tail Tracy I dissent hold it to be but a estate for life p will so in  the case of bagshaw v down or bagshaw v Spencer at the roll hill g a executory  trust be direct to the judge for their opinion as a legal estate upon the same  reason do beneficiary and trust Clifford v Ashley Charles Cas Salisbury v  Baggot ibidem north v champernon Charles Cas vern p will cruise upon fine but  recovery of this kind only operate on the trust estate whereof they be suffer  and the equitable remainder expectant thereon and do not effect any legal  estate so that a legal remainder can be bind by a equitable recovery Robinson  v come post Salvin v Thornton cite brown Cas in Chanc Shapland v smith brown  Cas in Chanc S p Chan Cas cruise upon recovery levy fine and suffer recovery  which be hold good in this court indeed in marriage article if they covenant  to settle to the husband for life remainder to the heir of their two body this  court will decree a conveyance in strict settlement if any of the party apply  here because the child be look upon as purchaser but in a will it be otherwise  they take through the bounty of the testator and in such word as he give it  Trevor v Trevor p will honour v honour Edward west v Erisey p will it be far  insist for the plaintiff that the word issue of her body will make a  difference from all other case for in the statute de gift which create intails  it be say to be a proper word for that purpose and be use no less than ten  time in that statute for this the authority of king and mell where one devise  land to a for life remainder to his issue male by his second wife it be  adjudge a estate tail in a and that his recovery bar all the remainder Vid  also vent Mod love and wyndham case vent and the reason there give can be  contest which be also a authority case tempt Talbot in the principal case for  there it be hold that to one for life with a power to make a jointure be much  strong to show the intent of the testator than the word without impeachment of  waste to a for life remainder to the issue of her body and for want of such  issue remainder over be hold a estate tail in the court of exchequer in the  case of William versus Thompson about three or four year ago Anders to one for  life remainder to the child of his body be a entail so in Wilds case   and  Sweetapple versus bindon vern a devise pound to be lie out in land and settle  to the use of her daughter and her child and if she die without issue to go  over and she marry b and have a child by he and she and the child be dead and  the money not lie out on a bill be bring by b the money decree to be consider  as land and the plaintiff to be tenant by the courtesy it be far argue that if  the remainder in this case to the issue be construe to be word of purchase  they must be attend with the great absurdity for in what manner can the issue  take all the son daughter and grandchild be issue and if they take as  purchaser they must be jointtenants or tenant in common and that for life only  vern cook v cook which construction can never be agreeable to the testator  intent and whatever estate be give in the first part of the will yet the word  and for want of such issue then c will give the plaintiff a estate tail accord  to the case of Langley versus baldwin be a case refer out of chancery to the  judge of the common plead during the time of Lord trevor preside in that court  where there be a devise to a for life without waste with a power for he to  make a jointure remainder to his first second and so to his six son and no  further after which follow the word if a shall die without issue male of his  body then to b in fee and in that case it be resolve by all the judge of c b  that there be no limitation beyond the six son and for that there may be a  seven and subsequent son to take but still to take as issue and heir of the  body of a in tail by descent and not purchase the court hold the word in case  a shall die without issue male of his body do in a will make a estate tail  with also attorney general v Sutton p will and shaw and weigh Eq Cas Abr pl it  be also far urge that from the face of the whole will and by compare this  clause with the other it appear that the testator intend the plaintiff the  lady glenorchy shall take a estate tail and that the several clause in a will  be to be take together and make but one conveyance and that it be a proper  argument to prove the intention of the party from the different pen of the  several clause the person who draw the will know how to convey either by case  tempt Talbot er p word of limitation or purchase where there be occasion for  it for where he limit the estate to mrs Ireland it be in strict settlement by  proper word of purchase and so where he limit it to the lady glenorchy in case  she have marry a papist but far to show he well understand the doctrine of  conveyance when he limit by word of case tempt Talbot purchase to son not in  be he have put in trustee to preserve contingent remainder which he will  certain have do in this case have he intend the lady glenorchy a estate for  life only for the defendant it be argue that though in the construction of  will in this court use and trust be to be govern by the same rule as legal  estate and that there be but little difference between use and trust execute  and legal estate yet trust executory but in the case of bagshaw v Spencer Ves  Lord Hardwicke strong express his doubt of there be any difference between  trust execute and executory and seem to intimate that this distinction have  never be establish by any direct resolution though say arguendo be by no mean  under the same consideration in the case of legate versus jewel and bail  versus Coleman the judge be divide in their opinion and since that time there  be a express authority for the defendant in the case of Papillon versus voice  a devise pound to trustee in trust to be lie out in land and to be settle on b  for life without wake remainder to trustee and their heir for the life of b to  support contingent remainder with a power to b to make a jointure remainder to  the heir of the body of b remainder over and by the same will devise land to b  to the same use and die leave c executor b sue c the executor for the deed  relate to the land that be in his hand and to have the money lie out in land  to be settle decree by the master of the roll that b have but a estate for  life in the land and so not entitle to the deed but that they be to be bring  into court and that the land to be bring with the money be to be settle on b  for life remainder to his first c son but by Lord chancellor king b be decree  to have a estate tail in the land devise and consequent to be entitle to the  deed relate thereto though as to the land be purchase that be executory and in  the power of the court b be to be but tenant for life with remainder to his  first c son p will and vide the note at the end of the case hill g so likewise  in the case of the attorneygeneral versus young in the court of exchequer and  the case of Leonard v earl of Sussex vern as also in the ease of Brampston  versus kinaston hear at the roll in June where a estate be give to be settle  upon his grandchild for her life remainder to the issue of her body and when  she apply to have a estate tail convey to her she be decree a estate for life  only and to show that this court be not tie up to the rule of law in case of  executory trust the case of the earl of Stamford versus sir John Hobart  concern sergeant maynard will be cite see this case more full state in bagshaw  v Spencer Ves and in fearne contingent remainder Edward where a estate be give  to trustee to convey one moiety to sir John Hobart for year in case he shall  so long live with several remainder over and this court decree the master  shall settle the conveyance accord to the letter of the will but upon  exception to the master report November it be order that proper estate shall  be make to support the remainder that the testator intent may not be frustrate  and this resolution be affirm in the house of lord so in all matter executory  this court endeavour to find the intent of the party and let we it prevail  against the rule of law in marriage settlement it be never doubt but that this  court will carry any case tempt Talbot word into strict settlement if the  intent of the party be such and so hold in the case of west versus Erisey ante  the court anxious distinguish those case from case arise upon will and  determine they to be estate for life upon three ground first because they be  upon valuable consideration second because they be to be carry into execution  against the parent three that if the party take a estate tail the use will be  defeat and consequent the child put complete into the power of their parent it  be otherwise say Lord Harcourt in bail v Coleman in the case of will which  have not be construe upon the same ground in the house of lord and in that of  Trevor versus Trevor Abr Eq can and the same rule will prevail in all case  executory whether will or article beside the present case be very much like  that of marriage article the testator have all along the marriage of his  granddaughter in view and intend this will as no more than head or direction  for the trustee in what manner he will have it settle and so it remain to be  carry into execution b the aid of this court then as to the word issue it be  sometime a word of limitation sometime of purchase there be a case mention in  Wilds case   where to one and his child be hold to be a estate tail yet have  it be one for life remainder to his child there can be no doubt but that it  have be a bare estate for life and as to the objection that the issue if  purchaser be to take joint and for life only why shall it not be as in case  where the limitation be to the first and every other son and wherever heir of  the body be hold to be word of purchase they be construe to the first and  every other son to make a estatetail arise by implication upon the word and  for want of such issue have be cite the case of Langley and baldwin Eq Cas Abr  but there be the case of Bamfield versus Popham vern in which case a devise be  to a for life remainder to his issue and if he die without issue then to  another yet resolve that a have a estate for life only in regard the word be  express for the defendant so the case of Loddington and kyme lev determine  hill Ann b r during the time that Lord Macclesfield preside there where the  case be that a seize in fee devise the premise to b to hold to he for the term  of his natural life only without impeachment of waste and from and after his  decease to the issue male of his body and to the heir male of such issue male  and for want of such issue remainder over and it be adjudge that b take but a  estate for life the estate be give to he for life only and there be a  limitation afterward to the heir male of his issue which be a description of  the person who be to take the estate tail and that of backhouse and well Eq  Cas Abr beside it be a general rule that where a estate be to be raise by  implication in the case of Robinson v Robinson burr the case upon this subject  be collect vide also Allanson v clitherow Ves lethieullier v Tracy atk Evans v  Astley from all which case it seem that in the construbtion of word of this  kind to effectuate the general manifest intention of the testator will be the  aim of court both of law and equity and consequent consider the raise estate  by implication as depend upon such implication be necessary to effectuate that  intention it must be a necessary and inevitable implication and such as that  the word can have no other construction whatsoever and in the present case  there be the word issue mention before so that these last word must relate to  the issue before mention whereas in the case of Langley and baldwin the  limitation be to fix son only then come the word and for want of case tempt  Talbot issue which word can not have relation to any thing before mention the  Lord chancellor have take time to advice and to have the opinion of the judge  upon this case and the same come now again to be argue upon the same point  that have be before the late Lord chancellor it be insist by the plaintiff  counsel that the lady glenorchy marry a protestant of the church of England at  or after the age of twentyone or if under that case tempt Talbot er p age  marry such a one with her ant or in case she be dead with the other trustee  consent be a condition precedent which when perform will give her a estate  tail that this intent appear from the different pen of the several clause in  this will for it provide in case she shall not marry such a person as be  before describe that she shall have but a moiety for life and trustee be  appoint to preserve contingent remainder none of which be enjoin in case she  shall marry a protestant of the church of England which show a difference be  intend in case of performance and nonperformance of the condition then  consider it as a legal devise no doubt but that a devise to one and the issue  of his body will make a estate tail and so it be hold in the case of king  versus mell vent notwithstanding the proviso there empower the devisee to make  a jointure so if in this case the land itself have be devise to the lady  glenorchy it will have make a entail at law and there be no difference between  a entail of a legal estate and of a equitable one Wilds case   devise to a man  and his child who have then two child alive the devisee take but for life but  in king versus mell vent Lord hale say that have there be no child live in  that case of wile it will have be a estate tail though child be not so strong  a word as issue which in many statute particular the case tempt Talbot statute  de gift take in all the child in Shelleys case   it be say that if there be a  gift to one for life be it by deed or will and afterward come a gift to the  heir of his body it be a entail otherwise indeed if the limitation be to the  heir male of such heir male as in archer case   there it will make but a  estate for life because the limitation there be graft upon the word heir so in  the case of backhouse and well in this case there be a limitation to one for  life only and after his decease to the issue male of his body and to the heir  male of the body of such issue and here beside the respective word only the  limitation be to issue male with word of limitation graft thereon and it be to  be observe that the word issue itself even unattended with any engraft word of  limitation be often a word of purchase where the word heir or even heir in the  singular number be not and in this case Lord chancellor Parker observe that if  the word heir male have be use instead of issue male the operation of the law  will have be too strong for the testator in b r Eq Cas Abr the devisee take  but for life the limitation be there graft upon the word issue which for that  reason be take to be only a description of the person in that case but in  cozen be case Owen and in Langley versus Baldwin Eq Cas Abr the estate tail be  raise by implication which show that a estate tail may pass not only by  express word but by implication also in king and Mellina the Lord hale say  upon Wyld s case that have it be to the child of the body it will have pass a  entail and yet none of those case seem so strong as the present so in the case  of cook versus cook vern it be say that a devise to one and his child if there  be no child live will be a estate tail the exception of waste be next to be  consider and have it not be for that this will clear have pass a entail but  this exception vary not the case for here the estate must disjoin accord to  bowless case   to let in the husband estate which must intervene between her  estate and that of her issue and the power of commit waste voluntary waste in  house except be give only to make her dispunishable of waste during the time  she shall be tenant for life only which she must be until her husband death by  reason of the remainder to he but not at all to restrain the estate which the  word of the will give her which be plain a estate tail the add the word  without impeachment of waste can alter nothing for if she be tenant in tail  she have already in her that power which these word will give her and the  express the power which be already in her can not more abridge her estate  accord to case tempt Talbot the maxim of expulsion out the dawn c than the  power of make the jointure do in king and Mellings case in Langley and baldwin  case there be the same word as here and in that of shaw and weigh or sparrow  versus shaw Abr Eq can which go up to the house of lord the prohibition go not  only to voluntary but to all manner of waste and yet there it be decree to be  a estate tail which be as much strong implication to make the sister to be but  tenant for life than any in the present case and in bail and Coleman case vern  a estate tail be decree by the Lord Harcourt notwithstanding the power of  lease give to Christopher bail nor can the other word voluntary waste in house  except carry the implication far than the former since this court will often  restrain a tenant for life without impeachment of waste from commit waste  notwithstanding his power as be declare by the earl of Nottingham in William  and Dakys case Ch can who there say that he will stop the pull down of house  or deface a seat by tenant in tail after possibility of issue extinct oi by  tenant for life though dispunishable of waste by express grant or by trust and  the like have be since do in the case of vane versus Lord Barnard Prec in  Chanc S c bishop of London v web p will sir h Packington case atk Perrot v  Perrot atk Aston v Aston Ves chamberlain v Dummer bro Charles Rep earl  Bathurst v burden bro Charles Rep vern by compare this with the other clause  of this will it appear plain that the testator do not intend the lady  glenorchy a less estate case tempt Talbot er p than to the other devisees but  that his design be to prefer her and her issue to that of mrs Frances Ireland  though Frances be dead at the time of the will and that her son who can expect  no more favour than his mother can have she be live shall not have a immediate  estate tail and so a great estate than she who be intend to be most prefer it  be plain the testator well know the difference between give a estate for life  and a estate tail by the different word of the clause of this will in that  whereby he devise the remainder to Mr Bosville these word be purposely omit  and in other he give the lady glenorchy several estate accord to the marry  such or such person protestant or papist and consequent he must be think to  have intend her a case tempt Talbot great estate upon her perform than upon  her not perform the condition if therefore these word will create a estate  tail at law the construction will be the same here since a court of equity  ought to go far than the court of law as be hold by Lord Cooper in the case of  legal and jewel vern Eq Cas Abr and be also hold by Lord Harcourt in the case  of bail and Coleman vern where he take a difference between case arise upon  will and case arise upon marriage article where the person be all purchaser  the agreement be to be carry into strict execution than in the case of a will  where the party be but volunteer the word must be take as you find they the  same be hold as many word in the case of Sweetapple versus bindon vern where  it be say that in a devise all be volunteer the devisees estate be not to be  restrain nor be there any argument to be draw from this be a executory trust  since the case of bail versus Coleman be such and look upon as such by the  lord Cowper and Harcourt and the case of Leonard versus earl of Sussex vern be  wide different from we for there be a express injunction that it shall be  settle in such manner as that the son shall never have it in their power to  bar the issue it be argue for the defendant by Mr attorneygeneral Mr Verney  and Mr fazakerly that the lady glenorchy can take but a estate for life and  they take a difference between the present case be of a executory trust and  those of Nzens and of cook versus cook which be legal estate and execute the  resolution in Sondays case   b which be likewise of a legal estate be chief  find upon the proviso restrain the son or his issue from alien which make the  argument that he be intend by the testator to be tenant in tail since if he  have be but tenant for life the restraint have be vain and needless in the  case of Langley versus baldwin a estate tail be raise by implication upon the  word if he die case tempt Talbot without issue male because the devise extend  no far than the six son no son bear after can have take but the heir at law  must have be prefer whereas his intent be to provide equal for all his son and  therefore the raise a estate tail by implication beside that it be in the case  of a legal estate be carry the testator intent into execution the case of king  versus mell have indeed go very far but have always be look upon as the ne  plus ultra beyond which no court will ever go this appear from the resolution  in the case of backhouse versus well where the party intent prevail against  the doctrine now insist on but it be say the word issue be always a word of  limitation in that of Sweetapple versus bindon the word do of themselves carry  a estate tail and there be no intent appear to the contrary and in legal  versus fuel one judge be of opinion it be but a estate for life and that case  be afterward agree the difference which be insist on in the former argument  and be still strong rely on for the defendant between legal estate and trust  execute and trust executory be evident and appear plain from the case of  Leonard versus earl of Sussex where the word be much strong to create a estate  tail than they be here but yet in that case the court declare that it be a  trust executory the provision shall be look upon as strong for the benefit of  the issue as if it have be in marriage article and that the testator intent  appear by the subsequent word that none shall have power to dock the entail  shall be observe therefore decree but a estate for life this difference appear  likewise from the case of white versus Thornborough vern and Trevor versus  Trevor Eq can Abr and from that of Papillon versus voice hill which be not  distinguishable from our case except that there be trustee appoint in that  case to preserve contingent remainder which be not in this but notwithstanding  that provision the late Lord chancellor declare in that case that the case  tempt Talbot limitation ha it be by act execute will have create a case tempt  Talbot er p estate tail but that the trust be executory and to be carry into  execution by the assistance of this court he will keep the party to the  observance of the testator intent which plain govern the present case and by  all those it appear that the testator intent be as much to be observe in case  of executory as of marriage article if therefore the testator intent be to be  observe and that no word which may have any operation be to be reject it plain  appear from this and the other clause of this will that sir Thomas Pershall  intend this lady only a estate for life it be true indeed that the word issue  in a will be general a word of limitation and create a estate tail but that be  only where no intent appear to control it and in every clause of this will  where he intend only a estate for life he mention the word for life and where  he intend a estate tail there be not a word mention of impeachment of waste  which show he know what he be do when he insert this exception and be not  ignorant of the operation these word will have on the several estate and these  word be in the case of Loddington versus kyme lev take to be a strong  implication of the testator meaning to give but a estate for life  notwithstanding the other word which seem to carry a entail nor be there any  colour for what have be insist on for the plaintiff that the power of commit  waste with the restraint of voluntary waste in house be design only to attend  on her estate for life till by her husband death she shall come to be tenant  in tail since no more can be mean by it than to restrain her from deface or  pull down house while she be in her husband S power the testator not know who  her husband may be this power of commit waste have be compare to the power of  lease in the case of bail versus Coleman though they be wide different nor can  it be compare to that of make a jointure in king and Mellings case for since  tenant in tail can make a jointure without a recovery the power be as proper  to case tempt Talbot be annex to a estate tail as to a estate for life which  be one of the reason of Lord hale opinion in that case in our case to serve  the intent of restraint of waste in house she must be decree but a estate for  life if it be a estate tail she will be enable to commit waste in house as  well as in all the other part of the estate notwithstanding any restraint to  the contrary nor will the answer that have be give to this that she may be  restrain in this court avail since no instance can be show where a tenant in  tail have be restrain from commit waste by injunction of this court Lord  chancellor that be refuse in Mr saville case of Yorkshire who be a infant and  tenant in tail in possession in a very bad state of health and not likely to  live to full age cut down by his guardian a great quantity of timber just  before his death to a very great value the remainderman apply here for a  injunction to restrain he but can not prevail the other objection that sir  Thomas Pershall can never intend the lady glenorchy a less estate than the  child of his other granddaughter Frances Ireland turn rather against the  plaintiff for the testator intent be to provide for the lady glenorchy child  preferable to those of Frances Ireland and therefore he make the lady herself  but tenant for life and her child tenant in tail nor be any thing more common  than to limit a estate for life only to the first taker by which the intent of  provide for child be better answer than if the first taker be make tenant in  tail nor will there in this case follow the inconvenience that have be mention  by make the issue to be purchaser videlicet that the issue must take joint and  take estate for life only for if issue be nomen proceeding by inference as  have be insist for the plaintiff why may it not be so as well where they take  by purchase as where they take by limitation especial where the testator  intent that they shall take successive and by seniority of birth be as case  tempt Talbot well serve by their take one way as the other and if the word  issue with respect to the operation of the word issue vide backhouse v well Eq  Cas Abr pl Loddington v kime raym meure v meure salk Ashton v Ashton cite Ves  Goodtitle v Otway will be tantamount to the word heir as it have be agree to  be they have answer themselves in the case of burchet versus Durdant so  Goodright v white Bla Rep Vid also Darbison v Beaumont p will fearne  contingent remainder that edit vent and in lev by the name of James versus  Richardson the word heir of the body be hold to be word of purchase by reason  of the word now live which come just after and yet be at the same time  determine to carry a estate tail the word heir be nomen proceeding by  inference and if so in case of a legal estate execute much more ought this  construction to hold here this will be mean by the testator only as head of a  settlement to be make and so may well be think not to have be so accurate in  the word as if the conveyance be then case tempt Talbot er p to have be draw  up with advice of counsel and all other assistance to make it formal Lord  chancellor Talbot several observation have be make on the different pen of the  several clause of this will from which I think no inference can be draw the  testator have express himself various in many if not in all of they it be  plain that by the first part of this will he intend her but a estate for life  till marriage then come the clause upon which the question depend but before I  give any opinion of that I must observe that the trustee have not do right for  nothing be to vest till after her marry a protestant the trustee therefore by  convey and enable her to suffer a recovery before marriage which have be do  accord have do wrong but the great question be what estate she shall take and  first consider it as a legal devise execute it be plain that the first  limitation with the power and restriction carry a estate for life only so  likewise of the remainder to the husband but then come the word remainder to  the issue of her body upon which the question arise the word issue do ex way  termini comprehend all the issue case tempt Talbot but sometime a testator may  not intend it in so large a sense as where there be child alive c that it may  be a word of purchase be clear from the case of backhouse versus well and of  limitation by that of king versus mell but that it may be both in the same  will have not nor can be prove the word heir be natural a word of limitation  but in what case word of limitation have be construe word of purchase Vid do v  lame burr bagshaw v Spencer Ves and the case there cite atk S c and when some  other word express the testator intent be add it may be look on as a word both  of limitation and purchase in the same will but shall the word issue be look  upon as both in the same will what a confusion will it breed for the moment  any issue be bear or any issue of that issue they will all take the question  then will be whether sir Thomas Pershall intend the lady glenorchy issue to  take by descent or by purchase if by purchase they can take but for life and  so every issue of that issue will take for life which will make a succession  ad infinitum a perpetuity of estate for life this inconvenience be the reason  of Lord hale opinion in king and Mellings case that the limitation there  create a estate tail it may be the testator intent be by this construction  render a little precarious but that be from the power of the law over man  estate and to prevent confusion restraint from waste have be annex to estate  for life which have be afterward construe to be estate tail I do not say that  where a express estate tail be devise that the annex a power inconsistent with  it will defeat the estate no the power shall be void but there the power be  annex to the estate for life which she take first and therefore I be rather  incline to think it strong than king and Mellings case where there be no  mediate estate as there be here to the husband there there be a immediate  devise here a mediate one so the apply this power to the estate for life carry  no incongruity with it as the case of king and mell have never be shake and  that of shaw and weigh or sparrow and shaw which go up to the house of lord be  strong I do not think that court of equity ought to go otherwise than the  court of law and therefore be inclinable to think it a estate tail as it will  be at law case tempt Talbot but there be another question videlicet how far in  case of trust executory as this be the testator intent be to prevail over the  strength and legal signification of the word I repeat it I think in case of  trust execute or immediate devise the construction of the court of law and  equity ought to be the same for there the testator do not suppose any other  conveyance will be make but in executory trust he leaves somewhat to be do the  trust to be execute in a more careful and more accurate manner the case of  Leonard and the earl of Sussex have it be by act execute will have be a estate  tail and the restraint have be void but be a executory trust the court decree  accord to the intent as it be find express in the will which must now govern  our construction and though all party claim under this will be volunteer yet  be they entitle to the aid of this court to direct their trustee I have  already say what I shall incline to if this be a immediate devise but as it be  executory and that such construction may be make as that the issue may take  without any of the inconvenience which be the foundation of the resolution in  king and Mellings case and that as the testator intent be plain that the issue  shall take the conveyance by be in the common form videlicet to the lady  glenorchy for life remainder to her husband the lord glenorchy for life  remainder to their first and every other son with a remainder to the daughter  will best serve case tempt Talbot er p the testator intent in the case of earl  of Stamford and sir John Hobart Dec it appear that for want of trustee to  preserve the contingent remainder all the use intend in the will and in the  act of parliament to take effect may have be avoid and therefore the Lord  Cowper do notwithstanding the word of the Act upon great deliberation insert  trustee in the case of legate and jewel the word if in a settlement will have  make a estate tail and in that of bail and Coleman the execution be to be of  the same estate he have in the trust which in construction of law case tempt  Talbot be a estate tail nor be the rule general true that in article and  executory trust different construction be to be admit the late case of  Papillon and voice be direct against this and it seem to I a very strong  authority for execute the intent in the one case as well as the other vide all  the principal case on limitation of this nature collect and arrange by Mr Cox  with the utmost accuracy and judgement in his note upon bale v Coleman above  and so decree the lady glenorchy but a estate for life with remainder c case  tempt Talbot er p in which case a devise land to trustee to pay debt and  legacy and then to settle the remainder oh her son b and the heir of his body  remainder over and direct that special care shall be take in the settlement  that it shall never be in the power of her son to dock the entail decree the  son shall be only tenant for life without impeachment of waste and shall not  have a estate tail convey to he it be probable that Lord Talbot have this case  in view when he determine glenorchy v Bosville but in the former it be clear  that the testatrix intend her son shall take a estate for life only case tempt  Talbot er p this case appear to have be decide upon the principle of a  distinction exist between legal and equitable estate and between trust execute  and executory Lord Talbot admit the word issue in a will to be as proper a  word of limitation as heir of the body and that he shall upon the first  question have make no difficulty of determine it a estate tail have it be the  case of a immediate devise he think in case of trust execute or immediate  devise the construction of the court of law and equity ought to be the same  for there the testator do not suppose any other conveyance will be make but in  executory trust he leave something to be do the trust to be execute in a more  careful and accurate manner but from several modern case it seem as if this  distinction no long prevail that a court of equity be as much bind by positive  rule and general maxim concern property as a court of law be and that whatever  be sufficient upon a devise to make a exception out of the rule hold as well  in the case of a legal as in that of a trust estate that if a testator make  use of legal phrase and technical word only the court be bind to understand  they in the legal sense but that if he use other word which indisputable  discover his intention and show to demonstration that he do not mean what the  technical word import that intention must prevail and which rule be applicable  only to the nature and operation of the estate or interest devise and not to  the construction of the word that the intention of a testator if contrary to  the rule of law can no more take effect in a court of equity than in a court  of law but if on the contrary the intention be not contrary to law a court of  commonlaw be as much bind to construe and effectuate that will accord to the  intention of the testator as a court of equity can be Garth v Baldwin Ves  wright v Pearson Ambl Rep but more particular state in fearne contingent  remainder that edit Austen v tailor Ambl Rep do v lame burr Hodgson v Ambrose  dougl Rep Jones v Morgan bro Charles Rep however the distinction lie down by  Lord Talbot have be admit and act upon in several precede and subsequent case  afford subject matter for its application and if in the word of Mr Fearne it  shall be find that the distinction be in its nature ascertainable with  sufficient precision and that it have in fact prevail through a great majority  of the most important and solemn decision it remain to be submit to the wisdom  of our court how far a profess adherence to the same distinction may deserve  their attention as tend to the establishment of a system or uniformity of  doctrine that may keep question of this nature within some probable limit of  construction fearne contingent remainder that edit p to where the propriety  and reasonableness of the distinction be support with admirable perspicuity  and considerable force of argument by that very accurate and learned author