case Atcherley against vernon S c Mod S c Eq Abr S c Peer wms S c corny S c  bro p c Mr Vernon make his will the seventeenth of January and by this will be  vest the bulk of his estate real as well as personal in five trustee for the  use of bowater Vernon c and also he give the residue of his personal estate to  the same trustee to be invest in land and settle to the same use he give his  wife five hundred pound to be pay her present by the trustee and a thousand  pound ayear free from all tax but parliamentary one in full satisfaction of  dower jointure and all demand out of his real estate to be pay by the trustee  he give her also all his plate and his London house and the good and furniture  he give her likewise the use of his house at Hanbury with all the demesne land  and park that he keep in his own hand with all the good and furniture together  with the book for her life he give his sister and heir at law mrs Atcherley  two hundred pound ayear for her separate use and his niece Letitia Atcherley  one thousand pound after the make of his will he purchase several estate in  land some of which purchase be complete and the conveyance execute in his  lifetime modern report but in some they be only contract for part of the  purchasemoney pay but no conveyance execute and in some the time limit by the  article for execute the conveyance be not come he purchase likewise a copyhold  estate but that purchase be complete save that he be please that the vendor  name shall be make use of in trust for he Mr Vernon be seize of the manor of  Hanbury in fee out of which there be Payable to the crown a feefarm rend of  thirtyfive pound ayear purchase this in and take a conveyance of this feefarm  rend to himself in fee matter stand thus Mr Vernon on the second of February  add a codicil to his will in which codicil be first take notice that he have  make his will bear date on or about the seventeenth day of January and ratify  and confirm this his will in every part thereof save what alteration he shall  make by that codicil he further take notice that he have by his will give his  sister and heir at law two hundred pound ayear to her separate use during her  life and a thousand pound to his niece Letitia Atcherley and by his codicil  make the two hundred pound four hundred pound in case she survive her husband  and increase the sum of one thousand pound to six thousand pound to be pay his  niece upon day of marriage or twentyone and then declare that his will and  meaning be that the respective legacy of two hundred pound ayear and the six  thousand pound be take and accept of by his say sister and niece in full  satisfaction of all manner of claim and demand they or either of they have or  may have upon any part of his estate real or personal and upon condition that  they do release unto his executor and trustee all manner of claim and demand  upon any part of his estate modern report then he go on and say have thus  provide for my sister and niece I do devise all the land purchase by I since  the make my will to the trustee in ray will name to and for the same use and  purpose as the manor of Hanbury stand settle by my will and I do hereby revoke  that part of my will wherein I make a b and c three of my trustee and I do  desire I S and I n to be two of my trustee and do devise my say real estate to  they accord upon this will and codicil the first point insist upon by Mr  Atcherley in right of his wife sister and heir at law to Mr Vernon be find  upon that part of the codicil I do thereby revoke c it be insist that he have  by these word revoke that integral part of the will that relate to the trust  and the use thereby limit have be not intend to have do so he will not have  use those word that part of my will but will have use some other word that  will have manifest his intention to have relate only to the person of the  trustee it be say that if he have intend only this it be I very strange that  he shall repose any trust as to the newpurchased land in those modern report  er p very trustee thus by he put out yet that he plain do for he devise they  to the trustee in the will name videlicet all five as the former meaning seem  to be the more literal one so it be the more favourable one to the heir at law  who will otherwise be disinherit by the will and it be likewise a  interpretation that make the codicil uniform and consistent with itself for  immediate after this there follow a new devise of all his estate to the two  new trustee which clause suppose the former not to be a revocation be plain  inconsistent and itself a revocation and as there be no new trust appoint by  this new devise the law imply that and say to the use of the heir at law  modern report but admit that the devise to these new trustee by virtue of the  word accord shall be take to be to and for the same use and purpose as be  mention in the will yet inasmuch as the land be devise to the trustee only  omit the word and their heir they can take only a estate for life and a estate  for life can support a use in fee at least the reversion upon the estate of  the trustee for life will descend on the heir at law it be foresee by Mr  Atcherleys counsel that the clause of the release to be give by the sister and  niece will be urge as a plain proof that it be the testator intention that his  heir at law shall have nothing more they endeavour to obviate that objection  by say that as the sister have then a subsist demand upon the estate of Mr  Vernon as it be admit she have it be probable that the release be direct by  the testator with a view to that only and not to any further claim it be very  unlikely to suppose that a man who be master of his own estate and may dispose  of it where he think fit shall order his heir to release in order to cut he  off from the estate when the very devise of it away do that as effectual as  five hundred release possible can on the other side it be say by the counsel  for Mr bowater Vernon that a revocation be no more to be presume than the  disinherison of a heir that the only use of will be the disinherit of heir and  prevent that descent which will otherwise fall upon they it be the business of  all court so to construe a will as that the whole may be consistent and  revocation arise from inconsistency will never be admit but where the  inconsistency be plain and unavoidable modern report therefore if in the  beginning of a will land be devise to I S and afterward in the same will the  same land be devise to I n the law will make they jointtenants rather than the  latter part shall be esteem a revocation of the former but it be so far from  be doubtful whether the testator do intend to revoke the disposition in the  will by this codicil that it be very plain from the whole tenor of it that he  intend the contrary in the very beginning of his codicil he take notice of the  make of this will and then ratify and confirm it then he make a additional  provision for his sister and niece and then direct that they accept the same  in full satisfaction c word that very plain and strong import that he intend  they nothing more but if this intention of his can be plain he have make it so  by the release he have direct they to give for though possible he may  principal have in his view the demand he then know his sister have upon he yet  when such general word be use as comprehend every thing it amount to a  demonstration that he do not intend they the bulk of his estate and it be not  at all absurd to suppose that not be able to foresee what dispute may arise  what point may be start how frivolous soever he may even to prevent these as  far as in he lie direct and appoint this release after this be go on thus have  thus provide for my sister and niece c word plain again imply he never intend  they any other provision the expression in the codicil three of my trustee  plain imply that the testator think there remain more trustee who have trust  repose in they all which can not be so upon supposition of a revocation the  follow expression to be two of my trustee corroborate the forgo observation  modern report but this observation stand yet further strengthen from his  appoint no new trust for the new trustee for upon supposition that the  testator do suppose as it be evident he do that his will be to continue and  that some of the trustee in his will be to continue such and so the same use  and purpose in the will mention then be there plain no occasion to declare any  new use but the bare make they trustee be abundant enough though if more be  necessary this one word accord be a relative word to the use in the will be of  such size modern report er p mount to the repeat they in the codicil beside  all this his devise his land purchase since the make of his will to the same  use as his manor of Hanbury stand limit by the will plain prove that the  testator imagine that these use be continue use and that he be very well  please with they add to all this that by interpret this to amount to a  revocation the provision of a thousand pound ayear make for his wife be quite  overthrow because it take away the fund out of which it be to arise as to the  objection take from the omission of the word heir in the devise to the new  trustee it be observe that a will be always to be interpret accord to the  intention of the party and that there be no legal form of word whatsoever  necessary in a will as in a deed there be to pass a feesimple but whatever  word make it plain the testator intend it will be sufficient for that purpose  and therefore here a fee shall pass to the trustee without the word heir  because it be impossible that any other estate can support the use for which  the estate be give they it be absurd to the last degree to suppose a man shall  in one and the same breath videlicet the same codicil ratify and confirm his  will and former disposition of his estate and then overturn all at once and  this in favour modern report of his heir at law for who he have be provide in  this very codicil and declare very full and express that be intend nothing  else at all for her the meaning of Mr Vernon be so full and clear that no one  but a lawyer can ever have mistake it and after all in order to mistake it it  be necessary to vary from the literal meaning of his word for have he mean and  intend what the other side will have have he he ought not to have say I hereby  revoke that part of my will but that clause for if it be ask what be that part  of the testator will whereby a b and c be make trustee be not the answer bare  their name so that in a literal sense which be likewise the real and natural  sense no part of the will be hereby revoke but that part of the will where  these trustee be name videlicet their name the bare name they make trustee and  the revoke the name of they put they out of the trust this point be clear  decree by the Lord chancellor in favour of Mr Vernon in the argue of this  point the case of Vachel v Vachel be cite by Mr Vernon counsel where upon a  bill bring by the old son to have his distributory share of the personal  estate it be decree against he upon this single circumstance that the testator  by give he a shilling in satisfaction of every thing he may claim out of his  estate have manifest his intention to be that he shall live nothing at all  another point insist upon by Mr Atcherleys counsel be that the feefarm rend of  thirtyfive pound ayear issue out of the manor of Hanbury and purchase in by Mr  Vernon do not pass to the trustee by the word land modern report it be say  that a heir at law be never to be disinherit but by very clear and plain word  b see den v gaskin Cowp b that therefore the word land shall never be extend  to comprehend feefarm rend to the disinherison of a heir at law unless where  the word can relate to nothing else and so otherwise be total void and upon  that distinction go the case of Inchly v Robinson c Leon Leon c the devisor be  seize of a feefarm issue out of the manor of Fremington and of no other land  whatsoever devise his manor of Fremington to I S and it be there hold that the  devise of the manor of Fremington be word in a will sufficient to pass the  feefarm rend issue out of that manor for the devisor be seize of that rend and  nothing else in that manor it be plain that the testator mean the rend and can  mean nothing else so that otherwise the will must have be entire void to this  it be answer by the counsel for Mr Vernon that Mr Vernon the testator be seize  in fee of the manor of Hanbury out of which this feefarm rend do issue have  merge the rend in the inheritance by take a purchase of it to himself in fee  but it be further insist upon that such a rend will very well pass by the word  land the case of Inchly v Robinson prove that the word be sufficient to pass  it where the intention of the testator be plain that it shall pass for the  word land be certain as comprehensive as the word in that case videlicet the  manor of Fremington modern report er p nor can the circumstance of the  testator have nothing else to pass more strong show the intention of the  testator that it shall pass in that case than the release in the present where  a man have a portion of tithe in fee hold that that shall pass in a will by  the word all my free land it be true the testator have in that case nothing  else but that be a circumstance of no weight any modern report further than as  it serve to show what the testator intend which the release direct do abundant  in the present case a style a the word livelihood will pass land in a will  feefarm rend be extendible upon a elegit and yet the word of the statute that  give the sheriff authority be only land center point terr Lord chancellor  merge in the inheritance and purchase by the testator with a view that it  shall be so beside the word land be sufficient to pass it especial in a will  and where the intention of the testator be so very plain as here it be that it  shall pass another point insist upon by Mr Atcherleys counsel be that the land  contract for where no conveyance be execute and especial those land where the  very time fix by the article for execute conveyance be not come at the time of  the make the codicil do not pass by it and consequent will descend to the heir  at law it be admit that if there have be no other land purchase since the make  of the will where the conveyance have be execute there possible rather than  this clause shall be entire frustrate they shall pass and in that case the  vendor will in a court of equity be consider as a trustee for the purchaser  for equity always consider thing that ought to be do in the same light as if  they be do but here there be other land purchase since the make of the will  where the conveyance have be execute the word of the codicil be satisfy by  those land ought not to be extend any further especial to the disinherit of a  heir at law nay in case there be no other land this rule of equity can be  extend no further than to such purchase where though no conveyance be actual  modern report execute yet the time fix by the article for the execution of  they be pass and then those land where the time limit for the execute of  conveyance be not yet come will not pass but descend upon the heir if the  testator have intend otherwise he may have make this very plain by express  himself thus land since purchase or contract for in answer to this it be say  that upon all the circumstance of the will and codicil take together nothing  can appear plain than that it be the intention of the testator they shall not  descend to the heir at law but pass by the codicil and if the intention be  plain it can be controvert but that the word make use of by the testator in  the codicil videlicet all the land purchase by I since the make my will and my  say real estate be large enough to take they in it be admit by the counsel of  the other side that the word will have pass they in case there have be no  other land and why be that only because it will have be then evident the  testator have intend they to pass and here the release order by the testator  speak this full as strong as to the difference take between where the time  limit for the execute of these conveyance be pass and where yet to come  nothing at all in it for that relate only to the term of the trust repose by  equity in the vendor a material circumstance that in every one of these  contract part of the purchasemoney be pay a know and establish rule in equity  that from the time of the contract the vendor be a trustee for the vendee upon  this foundation it be that a bill lie in equity against the vendor for a  specific performance nay shall the vendor afterward sell this land to another  have notice of this precedent modern report contract equity still transfer the  trust and the second vendee may in such case be compel to a specific  performance these word contract for and purchase be very common use  promiscuous beside if this be not to be consider as real estate then it must  be personal estate for there be no medium and if so it be give to the trustee  to be by they invest in land and settle to the same use but if it be to be  account as real modern report er p estate and as such descendible to the heir  at law then it be devisable and will pass by the word of the codicil case  quote to this purpose be Lingen v Souroy in Lord harcourt time a man by his  will give all his land in the county of York and kingdom of England and have  no land at the time of his death but only have oblige himself by marriage  article to purchase land to the value of fourteen hundred pound and hold that  this fourteen hundred pound shall be consider as real estate and be well pass  by the will in that case the case of Atkins v Atkins in Lord jeffrey time be  quote the case of woodier v Greenhill b Eq Abr vern Rep Eq Prec Ch b freehold  land be devise to trustee the land be contract for before the will videlicet  in April the will be make in June time fix by article for the conveyance be at  Michaelmas yet hold by Lord Harcourt that the land pass he be of opinion that  have the testator die before the conveyance and make no devise of it the heir  may have claim it as land and compel the executor to have pay for it out of  the personal estate and consequent if the devisor have such a interest in the  land contract for as be descendible it be devisable and Mr Vernon the present  testator be of counsel in that case insist very much upon the absurdity of  suppose it neither real nor personal estate modern report for if personal  estate it must not descend to the heir which all hold it will if real estate  and consequent descendible then it be well devise case of Prideaux v Gibbon a  Chan case a a man have contract for a estate devise all his land to be sell  for the payment of his debt and after the make of the will the land be actual  convey to he in pursuance of the antecedent contract the court decree the land  to be sell for the payment of his debt and if the testator have power to  devise a estate contract for before conveyance for the payment of his debt he  may certain have devise it in any other manner say in that case by the Lord  chancellor that where a man devise his land to be sell for payment of his debt  and he afterward purchase land equity will decree a sale though there be no  article enter into precedent to the will the Lord chancellor be of opinion  that all the land contract for by the testator as well as those which have be  actual convey to he do pass by the codicil then Mr Atcherleys counsel insist  that the copyhold land do not pass by the codicil but hold clear that it do  then it be insist upon by Mr Atcherley that some manuscript report of case in  chancery find in the London house do belong to the heir at law as guardian of  the reputation of his ancestor it be say that if the tomb or monument of a  ancestor be deface or destroy a action lie for the heir at law and that by  parity of reason as those manuscript be intend by the testator as a monument  to transmit his learning and reputation to posterity the law will intrust the  heir with the care of modern report they that they shall be print in such a  manner as will be most for the honour of Mr Vernon memory the print or not  print these paper may as much affect the reputation of Mr Vernon as any  monument or tomb possible they be not fit to be print possible they be never  intend to be print this be not in the nature of the thing fructuary and will  not therefore fail within that clause that give the residue of the personal  estate to the trustee suppose a man of learning shall have the misfortune to  die in debt can the creditor come into this court and pray a discovery of all  his paper that they may be print for the payment of his debt and if creditor  can do this a strong not the trustee in the present case if a minister of  state shall die he may have a great number of paper that may be very curious  may print and sell well yet sure these will not be consider as personal estate  and go to the executor as therefore paper find in a man study not be in their  nature fructuary be not consider as personal estate and in case of no will  will not have go to the administrator of Mr Vernon so it be argue that they do  not pass under that clause where the residue of his personal estate be give to  the trustee it be resolve in the earl modern report er p of Northumberland  case a Owen a that notwithstanding all his jewel be devise to his lady yet his  garter and collar of sacred scripture shall go to the heir on the other side  it be strong insist upon that it be personal estate and be devise to the  trustee by those word the residue of my personal estate modern report it be  insist in behalf of the widow that she ought to have they as include in the  devise of household good and furniture the court decide nothing in this affair  because all consent to have they print under the direction of the court  without make any profit of they those point be thus determine against Mr  Atcherley Mr Vernon counsel in virtue of a crossbill bring for that purpose  pray that the court will decree mrs Atcherley and her daughter to release in  the most effectual manner or else to waive their legacy for which the case of  Thorold v Thorold be cite this as high reasonable be direct by the court there  be another point contest by mrs Vernon the widow which be this sir Anthony  Keck mrs Vernon father do by his will make in devise the sum of two hundred  pound to his daughter mrs Vernon in these word videlicet to be by her lie out  in what she shall think fit in remembrance of I he give also another legacy of  fifty pound to the decease Mr Vernon and make he one of his executor it be say  that take all those circumstance together it must be intend that the testator  do plain design this as a legacy to the separate use of his daughter though he  do not use those very word and therefore as the testator never design that  this money shall be sink in the estate of her husband the estate of the  husband ought to be still liable to this demand in the hand of the trustee and  it be decree accord for mrs Vernon modern report note it be a point of law  very well know that if a man devise all his personal estate and die worth  double the personal estate he have at the time of the make the will all his  personal estate will pass but if a man devise all his real estate no land  purchase after the make of the will shall pass by it this difference the Lord  chancellor be please thus to account for that the statute which make land  first devisable c stat Henry cap and stat Henry cap c use these word a man  have land so that the parliament seem to consider devise as another instrument  of conveyance and therefore the rule have always be that a man can devise  nothing but what he may by deed convey Qure of this for admit that a will be  to be consider as a conveyance yet like other conveyance that be not esteem  valid until seal and deliver so a will ought not to be repute as a will until  the death of the testator when it take effect and it may not seem unreasonable  to consider a will as write every day of a man life that it lie by he  unaltered the true reason of this difference as seem to I must be take from  the fluctuate nature of personal estate so that death be the only time when  this be capable of be reduce to a certainty it be next to impossible to  discover what the personal estate of the testator amount to or consist in at  the time of make his will modern report michaelmas term the eleven of George  the first in the court of chancery earl of Macclesfield Lord chancellor master  of the roll