brown versus Barkham in canc on a devise to the heir male of the body of a one  who be heir male and not heir general shall nevertheless take by purchase  prece in Chan vern Eq ab c pale yellow Rep Eq S c sir Edward Barkham have no  issue of his own and only one sister and two cousin Robert and Edward Barkham  Jan make his will and devise the land in question to trustee and their heir in  trust to sell sufficient to pay my debt and to convey the residue to my cousin  Robert Barkham and the heir male of his body and in default of such issue to  the heir male of the body of my great grandfather sir Robert Barkham remainder  to my own right heir for ever then be give the interest of l to his sister for  her life and tile principal to her child after her death strange Robert the  first devisee die without issue in the life of the devisor then the testator  die leave a sister who be heir general to sir Robert the great grandfather but  the defendant Edward Barkham be heir male of the body of the great grandfather  the question be to who the trustee shall convey the surplus whether to the  sister as heir general of the devisor or to the defendant as heir male of the  body of sir Robert the great grandfather remainder to the right heir of the  devisor this case be argue very large at he bar and Cowper Lord chancellor  take time to consider of it and this term pronounce his decree Lord chancellor  if the manifest intent of the testator expound by natural reason without  regard to legal resolution be to govern in this case I shall think it will  hardly admit of a question but since there be a artificial reason in the law  which sometime stand as oppose to natural which be right reason and be find  upon the opinion and resolution of judge and that take and allow to be law the  court both of law and equity ought to submit to they when they be full examine  and find to be thus settle because otherwise the law will be a uncertain  undetermined rule and lawyer will not know how to advice their client I shall  therefore inquire how far this court be hinder in the present case by the fix  rule of law from pursue the plain intent of the testator which be no doubt  that the conveyance shall be make to the heir male of the body of sir Robert  the great grandfather and not to a female who be heir general to himself as  long as there be a heir male of the body of the great grandfather the first  objection insist on be that it have b en often adjudge that he who take as a  purchaser by the word heir of I S immediate must be complete heir of I S and  that no person can take as heir while his ancestor life I answer that this  maxim and the case find upon it be very foreign to the present question one  main ground of the resolution find on this rule be that the strange report er  p term heir in a legal sense denote the person who be to take after the death  of a ancestor can be use as a proper description of a person who ancestor be  live for the term of the description be not then verify but in this case they  be complete verify the ancestor be dead and the person who ask the conveyance  be heir male of his body and as such he be allow by all to be capable to take  by descent but they say not by purchase what strange ground there be for that  distinction will be consider hereafter at present I shall only observe that  Edward Barkham have all part of the description verify in he his case be  different from that of Chaloner v bowyer Leon where a devise be to the young  son for life remainder to the heir of the body of the old the young die in the  life of the old and the son of the old can not take why because he answer  neither part of the description for he be neither heir nor heir of the body of  his father while he be live and this objection will hold in many other case  the second objection which seem to stand in the way of natural reason be that  there be case in which it be hold that none can purchase by the word heir male  of the body of I S unless he be heir general as well as heir male I have meet  with but few case which can be urge with any colour of reason for the proof of  this assertion one be that of Counden v clerk hob in which it be say that when  the limitation be make to the heir male or female of the body they that will  take must have both word verify in they that be they must be both heir and  also heir male or female and he give this reason for it that this be clear  without the letter and intent of the statute of Westminster in answer to the  authority of this case I observe that this be not the point then in question  but only a opinion of hobart Lord hobart reason seem to have be thus at  commonlaw wherever there be a limitation to heir who be to take by purchase it  be the heir general who be suppose the object of that designation  notwithstanding there be circumstance which show that there exist a special  heir to who the land will go if it be transmit by descent thus if I give land  in gavelkind or borough English to one for life the remainder to the ring t  heir of I S the true heir I e the commonlaw heir shall take and not the heir  special by the custom after put some similar instance of the law anxiousness  to understand the term heir as applicable to the heir general he add it be  true that the statute of Westminster in favour of the will of the donor ordain  that land shall descend to the heir special who be describe per form gift but  the case here be not within that statute because it apply mere to case of  descent and not of purchase because the heir male not be restrain to any body  it be a mere feesimple it appear from the argument of the counsel for the  special heir in the present case which be report verbatim alike in pale yellow  Eq Rep and Prec in Chanc that they contend that the case be within the  operation of the statute de gift and they claim its protection for they say it  be quasi a estate tail in the grandfather sir r b the word heir male of the  body operate not only as word of purchase but also as word of limitation since  the land will not revert back to the donor or his heir in case of failure of  issue male in the son of the ancestor in who the estate first vest under that  description as it will if such son take absolute by purchase but will descend  to the next heir male of the ancestor in the same manner as if the estate tail  have vest in and descend from he declare incidental in the argument of the  case and therefore ought to have the less weight the reason that be give for  it be by no mean satisfactory or a good one for the statute Westminster be no  way pertinent to the question the whole effect of that statute be to prevent  the alienation of estate which before be consider at commonlaw as feesimples  conditional and alienable after issue bad and how this be applicable to the  question concern the description of a purchaser and whether certain word will  be sufficient for that I can imagine the statute only govern estate when they  be vest but meddle not with the description that be necessary to pass those  estate the word heir male of the body of I S be certain and know word of  purchase at commonlaw and need not the aid of the statute to make they so by  what Hobart say afterward in the same case it may well be conclude that if it  have be the point in judgement he will have be of opinion that a man may take  by the description strange of the heir male of the body of I S though he be  not heir general but a female be for he take notice that in the case then in  question the heir male be not restrain to any body which say he may have have  some colour of help from the statute de gift this great man can not pass over  his own assertion which he make before without some remorse of judgement if it  be his assertion but I rather take the word of the body to have be add by a  unskilful transcriber of the copy so that upon the whole I think that case of  Counden v clerk of very little weight in the present question but the point  there adjudge be doubtless good law another case urge for the plaintiff be  Shelleys case   which be transcribe into his   Litt b this be indeed a  authority such as it be in point that one can take as a purchaser by the word  heir male of the body of I S unless he be heir as well as heir male but in  answer to this I observe that this point be not adjudge in Shelleys case it be  only the argument of counsel which the court in deliver their opinion take no  notice of the authority in the margin of   Litt which be cite to support this  case be most of they very little to the purpose and do by no mean prove it  that of hussy in bro title do make rather against this position and that of  dyer a be only a short sketch of Shelleys case and the less to be regard  because it differ from the elaborate report of that case by coke have thus far  clear the present question from these two great authority there remain only  one other which I shall not think very material to be take strange report er p  notice of have not the counsel for the plaintiff think it of so great moment  as to desire a rehear upon the discovery of it it be the case of starling Rep  by the name of starling v Ettrick Prec in Chanc a in this court W and be thus  a devise land to I S for life and then to trustee in trust to convey they to  the next heir male of testator and it be decree that the trustee can not come  to the next male relation because he be not heir which be certain the very  point resolve in the case of Counden v clerk and in that of which be cite in  it and the reason be that the word heir male be not a sufficient description  without add of the body and they be not answer unless the person be both heir  and male nor be they sufficient to pass a estate by descent any more than by  purchase indeed in case of a will the word of the body be supply so as to make  it a estatetail in the person that take it but then the person that be to take  it must be heir as well as male strange have now go through all the case that  be urge for the plaintiff which I believe be all that can be urge and it  appear to I that many of the point in they be not pertinent to the present  question and those that be gratis dictam and the argument of counsel without  ground either from reason or former authority to support they I shall now  proceed to show that a man may take by limitation or purchase as heir male of  the body of I S though he be not heir general and that for these reason the  law allow a man to purchase by a sufficient description though neither his  Christian or surname be part of it and that the word heir male of the body of  I S be a sufficient description of that particular heir though he be not heir  general the judicial authority that a man may take as a purchaser by the word  heir male of the body of I S without be heir general great overbalance those  that hold the contrary first as to the first point it be so certain a  principle in law that a man may purchase by other description as well as by  his name that it have be adjudge the word abbot or bishop of a certain place  will be a good description though the name of the person be mistake   Litt a  but to make a good description there be three thing requisite all which concur  in the present case it must be true it be true that Edward Burkham be heir  male of the body of the testator greatgrandfather which be manifest because  otherwise he can not take a estate by descent as such in case the  greatgrandfather have be seize of it to himself and the heir male of his body  which all allow he will and why he may not by purchase I can conceive for the  description be as true in the case of a purchase as a descent and why shall it  not then be good as well in the one as the other they say the statute de gift  aid in the case of descent but not in purchase but I have already show that  the statute do not at all relate to this point for it meddle not with the  description that be to pass estate and therefore if heir male of the body of I  S be not a sufficient description that special heir can not have any aid from  the statute and if it be a sufficient description be do not want the aid of it  and the present case be the strong because the greatgrandfather be dead at the  time of the devise so that the maxim quod non be haeres to live be not in the  way but all the word be immediate verify at the time of the devise it be say  indeed they be not because the male be not heir in this case but the very  state of this matter will expose it as contrary strange to common sense and  reason for it be manifest the testator intend that his heir general shall not  have these land unless he be a male also and therefore he add those word to  restrain the general sense of the word heir and to confine it to a special  heir if land of the nature of borough English at commonlaw be devise to my  heir accord to the custom of borough English by this the testator must mean  his young son shall take hob S p a but to prevent the take in this case they  will have you stop at the word heir and then this special heir can take but if  you take all the word together then he may for the word the testator have use  be plain certain and well know in law to describe the person the testator  manifest intend shall take by they the second thing requisite to make a  perfect description be that it be certain and applicable to the thing describe  and no other and this be so in the present case for Edward Barkham be heir  male of the body of the testator greatgrandfather and no other person be so  strange report er p the three requisite be that it be express in proper word  this be not always necessary in a will but here they be proper even in the  case of a will for the word heir male of the body be the proper and indeed the  only word that can be use to distinguish that special heir from the general  heir sometime the word right be use with heir but improper in case of this  nature thus you see all the thing requisite to make a perfect certain  description concur in this case and therefore since it have be prove and  indeed can be deny but that a man may take by any other good description as  well as by name it evident follow that he may take by this second I come now  to show that the judicial authority that a man may take as a purchaser by the  word heir male of the body of I S though he be not heir general do great  overbalance those that hold the contrary the first case I shall mention be  that of Burkett v Durdant vent which be adjudge in the house of lord and the  case of James v Richardson in pollexfen be the same the case be thus a man  devise land to a for life remainder to the heir male of the body of a now live  and for want of such issue remainder over and it be resolve that there pass a  estate for life only to a and that the remainder immediate vest in the heir  male of the body of a then live because those word be a sufficient demarcation  person a who be intend strange to take and this be a strong case than the  present because the ancestor be alive he can not strict speak have any heir  but those word be use in common parlance to denote the person who will take as  heir male if the ancestor be dead that be think sufficient as for the word now  live I do not think they be very considerable in that case for they only show  that the testator intend that some body who be then alive shall take the case  of long v Beaumont which be decree in the house of lord Pas Ann have not these  word now live and yet heir male of my aunt long be adjudge a good description  of the person that be to take though the aunt be still live and consequent he  be neither heir nor heir male nor be it certain he will be heir male of her  body at the time of her death in this case the devise be to the heir male of  the body of the testator aunt lawful beget which it be argue be tantamount to  the word then live especial as the testator take notice in his will that his  aunt have child live have bequeathe a legacy to each but that beget and to be  beget be tantamount vide   Litt b and note Edward hark cook v cook vern  Musgrove v very ib Hewett v Ireland Prec cane p wms SC Gore v gore p wms the  case of Pybus v Mitford be thus vent mich Mitford be seize of the land in  question and have issue Robert by the first venture and Ralph by jane the  second and covenant to stand seize to the use of his heir male beget of the  body of his second wife the question be whether Ralph can take the judge to  support the intent of the party raise a finespun notion of a result use which  indeed be very well labour by they but hale in deliver his opinion insist upon  the point now in question and argue very strong and clear that the word heir  male of the body of I S be good word of purchase and put the ease of a gift to  one and his heir female of his body and he have a son and a daughter the  daughter shall take Litt sect and by several other case there quote he say it  appear that no regard be have whether the son be heir of the husband if he be  the heir of their two body and then cite a case which be adjudge in queen  Elizabeth time which seem direct to the present question a man have three  daughter and a nephew and he give l to his daughter and his land to his heir  male provide that if his daughter trouble his heir then the devise of l to  they shall be void and it be adjudge that the limitation to his brother son by  the name of heir male be a good name of purchase and say he this agree with  Counden and clerk case in Hobart these reason and these authority make so  strong a impression upon justice wile that he immediate declare himself  convince and that he be of the same opinion with hale and for my part I think  they be sufficient to satisfy any reasonable man Trin W in c b rot baker v  wall ld raym Eq can Abr pl I S by his will devise his land to Daniel my old  son and strange to my heir male for ever and if my heir shall be a female my  say heir male shall pay my heir female l per annum out of my land I mean my  heir male for ever the testator die and Daniel die leave issue one daughter  only and it be resolve that John the brother of Daniel shall take the estate  by the description of heir male of the testator though the word of his body be  strange report er p not in but the testator intent appear so plain that a heir  female shall not hinder the next heir male from take they give judgement for  the male upon the whole I be of opinion that the word heir male of the body of  his great grandfather be good word of purchase to pass the estate to he who be  heir male though not heir general because common sense natural reason and  understanding and the manifest intent of the testator call aloud for this  justice because the legal authority that be urge for the contrary opinion be  of themselves but of very little weight because the resolution that have be in  favour of this opinion do great overbalance those of the other side the next  inquiry be how the trustee in this case shall execute their trust and it must  be observe that though the testator direct the trustee to convey the surplus  to the heir male in the plural yet that be well pursue by convey to the heir  male in the singular number and to his heir male for so the legal sense of  those word be as be resolve in Shelleys case and it be most proper express in  the plural number because then the word denote both the person to take and the  estate to be take let the conveyance be make to the person who be heir male of  the testator great grandfather and the heir male of the body of the great  grandfather in this I follow the law which execute condition executory as near  as may be where the word can be strict pursue and a court of equity ought to  execute trust as the court of law do thing executory vide Litt sect   Litt  strange report er p this case come before Lord Hardwicke upon a bill of review  November who affirm this decree upon the ground of its be a exception to the  general rule lie down in Shelleys case Rep and in   Litt b that to take by  purchase under a limitation to heir male or female of the body the taker must  also be heir general but his lordship consider that rule as have prevail so  long that it ought to be support although not strict agreeable to natural  reason vide Mr hargrave note   Litt b and note a where the reader will find  all the authority upon the point collect together and a most ingenious defence  of the rule in its most unqualified extent vide also Fearn count Rem that ed p  p it shall seem however that most of the case there cite do not support the  rule in its full extent and that they may be good law although this rule be  not so for the limitation in these case be to the right heir male the further  word of description in the rule and in the present case of the body of I S be  omit it be so in every report of Southcot v Slowel except Mod beside which the  point be not there direct before the court so also in starling v Eltrick Prec  in Chanc ford v Lord ossulston salk Mod vin Abr devise u b pl in marge daw v  Ferrars p wms Prec in Chanc and gwynn v hook vin pl note Wilson SC the  addition of the word of the body be not only rely upon as material by Lord  Cowper in the present case but by Lord Macclesfield in distinguish that of daw  v Ferrars from it his word be it be not be say in the will heir male of the  body or of his name the granddaughter who be his heir at law may have a heir  male though not of his name all that be necessary to enable the special heir  to take be that he shall be describe by such express term or circumstance as  can be applicable to any other person as be admit by Lord Hobart in Counden v  clerk and decide in the case cite by Lord Cowper if therefore the description  of right heir male may apply to two different person as it be put by Lord  Macclesfield that it may the heir general who be the favourite of the law be  not to be disinherit where the intent be mere conjectural and not certain but  the objection of uncertainty do not apply to the description of heir male of  the body of b for the testator use the proper word to show be mean that a  special heir shall exclude the heir general and they be also sufficient  accurate to point out who that special heir be to be it be true that the law  will in general supply the word of the body in a devise to heir male and this  at first sight seem to destroy the distinction take between the case cite and  the present but our court appear in no instance to have either add or reject  word unless where they be necessary to carry into effect the manifest intent  of the testator certain although untechnically express the opinion of the  court of b r upon a case out of chancery will v palmer burr black seem to have  settle this point in a case much strong than the present it be thus a settle  some land to the use of b his old son for life remainder to his b s son  successive in tail male and after intermediate remainder to the use of the  heir male of the body of the say a he also settle by the same deed other land  to the use of himself for life and after several intermediate limitation to  the use of a his heir and assign b die leave one daughter a afterward devise  this remainder in fee under the settlement to his son c for life remainder to  his c s son successive in tail male and for want of such issue to the heir  male of his the testator body beget he then die leave the daughter of b his  heir at law and a son by his first wife the heir male of his body and d a son  by a second venture c next die leave a son who also die without issue and no  recovery be suffer by either the question be whether d the son by the second  wife take by purchase under the description of heir male of the body of a he  not be heir general the three judge who compose the court certify that in the  present case d take by descent under the deed as heir male of the body of a  but that if a three person have be the grantor he will have take by purchase  under the description of heir male of the body of a and that he do so take by  that description under the will in Evans on the demise of Burtenshaw v Weston  the court of exchequer refuse to apply this rule of Lord coke in the case of a  marriage settlement har   Litt a it shall seem from a reference of sir Jama  barrow vol as if the court of king bench have determine the same point between  the same party strange report er p