case Hawkins v chapel and other November the that follow Welsh v bishop of  Peterborough Q b d W h by will devise the perpetual advowson of S to W c c  upon trust to present his son W to this live and that after the church shall  next after his death be full of a incumbent then to sell the perpetuity and to  apply the profit arise from the sale first for the payment of his debt and the  overplus he distribute in three to his daughter the trustee present W the son  who die before the advowson be sell leave a daughter a infant who by her next  friend bring he bill insist after debt and legacy pay there be a result trust  to the heir at law of the testator in the advowson his lordship of opinion the  whole legal estate be devise away and no result trust for the heir at law  William Hawkens be patron and incumbent of Simmondsbury by will date the that  of February devise all his land in S and the perpetual advowson of S to sir  William chapel c upon trust in the first place to present his son William to  this live if he shall be alive at the time of his decease if not to such  person as his wife shall nominate and then he go on and say that after the  church shall next after my death be full of a incumbent then to sell the  perpetuity of it and after such sale to apply the profit arise from it in the  first place for the payment of his debt and the overplus he distribute in  three to his daughter and to the daughter that be of age he give a immediate  share and the proportion of those under age he direct to be place out in  government security then come this condition that if any or either of the  daughter die before the age of or marriage their three to go to the son  provide he execute a deed for the confirmation of the will and in case he  shall refuse the three or three so lapse shall go to the survive daughter or  daughter the trustee present William who die before the advowson be sell leave  a daughter a infant that by her next friend bring this bill as heir at law to  the testator for a injunction to restrain the defendant the trustee from  present any other clerk to the live of Simmondsbury than a person nominate by  the plaintiff upon a suggestion that after the testator debt and legacy be pay  here be a trust result to the heir at law in this advowson and that she have  the right to nominate atkins Lord chancellor of all the case that have bear  any argument for a result trust this seem to I to be the strong against the  heir at law first question whether any result trust arise out of the devise of  this advowson to the heir at law or whether the ownership of it or any spark  of right be descend to the heir at law second whether the ownership be not in  the daughter by virtue of the devise under the will of the father it must be  admit that at commonlaw where a estate be devise to trustee and their heir the  whole be go from the heir then the question will be whether in equity there be  any beneficial interest remain to the heir upon the trust of this advowson and  that must depend on the declaration of the trust by the will whether the trust  of the whole be declare or whether any part be omit and in my opinion the  trust of the whole be plain declare if either of my daughter die before or  marriage the share of her die to be divide among the survivor a express trust  also to sell the perpetuity and divide the surplus among his daughter this be  a devise of the inheritance clear to the daughter subject to the charge of the  debt for nothing be more certain in equity than that where a estate be charge  with a encumbrance or with the payment of creditor and after such encumbrance  or creditor be discharge the surplus be give over the whole property or  ownership of the estate vest in the devisee or residuary legatee in the  present case too the heir at law be absolute disinherit accord to the intent  of the testator which appear by his direction that the heir shall confirm his  will under the penalty of lose the small contingent benefit in the surplus and  the true question be who be the real owner of the advowson now whoever have  the trust atkins er p be in this court consider as have the beneficial  interest and therefore the ownership of the estate and that be the foundation  of the case of roper and Ratcliff nor do Lord Harcourt differ with Lord  Macclesfield in this general ground of equity but in the consequence of that  principle and how it will operate upon the disable statute against papist the  will c vide Mod Cas in law and Eq d part and the new Abr of law vol in the  argument for the plaintiff it be say that though the debt or legacy shall  exhaust the whole estate yet a heir at law may come into a court of equity and  compel trustee to give he the option of take the estate upon payment of the  debt c but the reason of that be because the court do not take into  consideration whether the estate be exhaust but the right of the heir to the  equity of redemption of the estate nor do they give a election arbitrary that  a person shall redeem or submit to the sale of a estate for the privilege be  not find upon the election but upon the property in and ownership he have of  the estate if a man seize of a advowson be likewise incumbent of the live and  devise the advowson upon his death the devisee will be entitle to nominate but  then it be object that sir William chapel c be mere trustee and that they can  do nothing of themselves and that somebody must nominate why then shall not  the heir at law for this plain reason that if the ownership and property of  the advowson be in the daughter all the rest be a consequence of it for  wherever there be a right give to say the heir be entitle be to say that he  have a right to the fruit fall without have any right to the tree or the soil  in which it grow it have be say likewise that as it be money and a mere  personal interest which be give to the daughter that therefore there be a  result trust for the heir at law but whether a man have a advowson in he as a  personalty or a realty it will make no difference for the right of  presentation will equal belong to he because the daughter have the money arise  by the sale it do not follow that they have nothing else give they for if give  they so much money give they the beneficial interest in the advowson every  thing else that be a consequence of such interest will follow upon it and  therefore as the advowson be the daughter property the presentation be a  beneficial interest and will likewise belong to they it be object too that  this interest of the daughter be a contingency and to arise in going to be but  I be clear of opinion it be a vest interest for the produce of the money arise  by the sale be intend for a maintenance for the daughter who be under age  though not Payable till they arrive at twentyone and this be nothing but a  regulation and direction for the atkins manage of the estate till they come of  age and it have never be hold in a court of equity to alter the construction  of a will but it be say the daughter take nothing till the sale and here the  avoidance be before the sale and that the delay of the trustee in the sale of  the advowson have make a alteration in the heir favour it never be allow in  this court that trustee neglect or accelerate a sale shall make any alteration  in the interest of the beneficiary and trust because such a admission will be  put it in the power of trustee by fraud or collusion to destroy the whole  intention of a testator it have be say that if the heir at law shall nominate  it will not injure the daughter because the advowson may sell after the  plenarty for as much as before and so it may but still it may be sell for less  and if the daughter dispose of the presentation they may for prudential reason  insert a old life and then it will certain sell for more than if there be a  young one and therefore I shall not assume to myself a power of give away the  right of the daughter upon a bare pos atkins sibility that the heir at law  present will not turn to their disadvantage I be therefore of opinion that the  legal and equitable estate be devise away by the will and the ownership in  equity vest in the beneficiary and trust of the surplus and that the  nomination to the present avoidance follow such equitable ownership of the  advowson his lordship therefore order the bill to stand dismiss and the  injunction upon the trustee to be dissolve atkins er p