case Charles selby Amherst Esq administrator of dame margaret stride his late  wife who be the widow of sir george stride decease plaintiff William Robinson  litton Esq devisee in the will of litton litton Esq decease who be the only  son and heir of the say sir george stride decease Francis MASCAL and james  beddingfield mortgagee of the estate in question e contra defendant S c ante p  in court Lord chancellor sir Robert Raymond chief justice of b r Mr justice  Denton Mr attorneygeneral for the defendant William Robinson Litton these  cause come before your lordship to be reheard on the petition of William  Robinson Litton whereby he insist that the equity of redemption of these term  belong to he and not to the plaintiff first for that the testator do not  intend to give the lady stride the absolute interest in the term but only to  give her the same as a security for the money due upon those mortgage second  because if it be his intention to devise the absolute interest in the term to  his mother such a devise can not take effect in point of law and three because  this point have be already determine against her by the decree of Lord  Harcourt that this be the testator intention appear manifest from the whole  frame of the will the devise to lady stride of these mortgage term be among  the pecuniary legacy and before the devise of his land and when he come to  devise his land to the defendant William Robinson Litton he describe they by  the word all and every his manor c which convey the land in question to he in  as plain and ample a manner as if the testator have devise they by express  word mosely report this intention be still the more evident if it be consider  that the devise of his real estate to the defendant William Robinson Litton be  in the same word as the devise to the testator own son in case his wife have  be with child of a son and it be not to be imagine that the testator can  intend to give these land from his own son to his mother No devise by the  testator of these term but as mortgage interest can possible take effect till  the determination of the estate to stride stride and the estate tail to his  son and the contingent estate limit to George Darnelly for life and to his son  in tail and it be hardly to be imagine that it can ever enter into the think  of the testator to give his mother a remote interest in land which she can  never probable either enjoy or sell and to sever such long term of one  thousand year from the inheritance of his estate only in order that his mother  may have the power of give they away from his family to a stranger as the fact  have real happen the word of the devise in question be proper to convey these  estate as security and to put his mother in the place of the mortgagee and  such interest only they must necessary be suppose to pass so long as any of  the beforementioned intermediate estate precedent to the testator reversion in  fee subsist and there be no reason to imagine that the testator intend his  word shall have two different meaning if your lordship shall reverse this  decree dame Margaret stride under who the plaintiff claim and who have a  jointure beside of pound per annum have by the will of her son Litton Litton  legacy to the amount of pound beside the rentcharge of pound per annum thereby  give to her for her life which be very near as ample a provision as he design  for a only daughter in case he have leave one but if the decree stand then the  plaintiff in right of his wife will receive out of Litton Littons estate four  time as much as the provision make by the say testator for a only daughter  which can never be suppose the testator intend but second suppose it appear  never so plain to be the testator intent to devise the absolute interest in  the term to his mother yet we humble apprehend that such a devise can take  effect in point of law because those term or which be the same thing as to the  present question the equity of redemption of they will then mosely report er p  at the death of the testator stand limit in the follow manner videlicet in  trust to attend the freehold and inheritance so long as the estate mosely  report for life of stride Bedingfield the estate tail of his son and the  contingent estate for life and in tail of George Darnelly and his son shall  last and the residue after all those estate spend not to attend the  inheritance but to be for the benefit of lady stride her executor and  administrator as term in gross and we humble conceive that such a devise of  the remainder of term after estate tail be void as be too remote when separate  from and not attendant on the inheritance term indeed attendant on the  inheritance by the rule of this court may be limit in the same manner as the  fee because they may be bar by a recovery of the estate in tail and in  remainder but no act of the tenant in tail can cut off these term the term  themselves can not be bar because the tenant in tail can bar only what arise  out of his freehold but these term be raise precedent to his estate nor the  trust of they for nothing put they in the power of the tenant in tail but  their attendancy but by this will they be sever from the reversion equity  consider the trust of a term as to the limitation of it in the same manner as  a devise of a term but a term can not be devise in this manner and there be no  difference whether the term be thus original limit or by the devise because  the same consequence and inconvenience will follow and then that may be do by  two conveyance which can not by one suppose tenant in tail with a term  attendant convey to a purchaser without suffer a common recovery and the term  be assign in trust for the purchaser and the tenant in tail die leave issue  the issue enter on the estate tail and suffer a common recovery that will not  bar the term because it be not attendant at the time of the recovery but three  by the decree in the former cause the court have determine that lady stride be  entitle to the say term only as a security for the mortgage money by decree a  redemption to stride stride Mr solicitor general for the plaintiff in case the  general devise to the defendant William Robinson Litton and his heir may be  sufficient to include the say premise in Sussex by virtue of the general word  though not express mention yet I humble apprehend that both devise of the say  premise in Sussex be consistent ought both to stand and that the devise to the  defendant be in nature of a residuary devise and therefore can control what he  have absolute give his mother before but that the plaintiff be entitle to the  say several term of year absolute mosely report and the defendant only to the  reversion in fee of the land in Sussex the defendant have by the same will a  very large estate give to he in possession in other county the plaintiff and  defendant both derive their respective title under the same will as voluntary  devisees and therefore it be high reasonable that the same shall be construe  in such a manner as that a express particular devise of land full and plain  ascertain and describe shall not be defeat or invalidate by a general  indefinite clause and the word whereof he be seize in equity c do not show  that the testator design the equity of redemption of these term to the  defendant because the legal interest of most part of his estate stand limit to  trustee and this be not insist on in the plead the testator Litton Litton have  the remainder in fee of the estate in Sussex which be mortgage have undoubted  a power to dispose of the term of a thousand year and the equity of redemption  thereof absolute against every one except stride Bedingfield who have a estate  for life by the will of sir George stride and except the contingent remainder  create by the same will if they have happen to take place which they do not as  Litton Litton have such a power he have by plain and express word give these  term for year to his mother absolute and without any condition or subject to  any redemption so far as he have power for he direct that his executor shall  pay off and discharge all mortgage and encumbrance lie upon his estate in  Sussex charge by the testator father and that the several mortgage lease shall  be keep on foot and be assign to his mother for her sole use and benefit  during the remainder of the several term in the say mortgage contain the  defendant construction of these word reject the word sole for if the term be  liable to a redemption she do not hold they for her sole use and benefit but  partly for her own benefit partly for the benefit of another though the  mortgagee only be direct to assign yet more than their legal interest pass by  the assignment suppose a mortgagor direct the term to be assign mosely report  er p to another be the assignee a trustee too No the interest of the mortgagor  himself passes as well as the legal estate of the mortgagee and if the  testator have a estate stand out in trustee be it not the same thing whether  he devise it to another or direct the trustee to assign it to he for his sole  use and benefit as to the absurdity that the same word shall hear two meaning  the testator may reason with himself that at mosely report the worst she shall  have the pound he design her indeed the term if he can otherwise the money and  if it be the intention of the testator to devise these term to his mother  absolute no rule of law or equity be break thereby here be no devise or  limitation of any term in tail or any tendency to a perpetuity but only a  devise of these term for year which be capable of be dispose of by will accord  to the interest that the testator have in they and though stride stride have  such a interest for his life that he may redeem they by virtue of the will of  sir George stride in respect of such interest yet subject thereto they be well  devise to the lady stride her executor and administrator it can be deny but  the owner of the inheritance may crave term out of it or if there be term  attendant on it he may sever they from the inheritance by devise as well as  create new term or if there be mortgage term stand out on his estate he may  redeem they and give they away or direct by his will his executor to redeem  they and assign they absolute to another and none who claim under his will can  complain for why shall it operate in favour of one devisee and not of both it  be not so clear that the trust of a term can take effect after a estate tail  that never vest salk vern Higgens versus Dowler a demise land for a long term  in trust for b for life then to his first son for the remainder of the term  and in default of issue of such son to the second and other son of b and for  want of issue male to the daughter of b for the remainder of the term when it  appear thus at the first argue that no estate tail vest but be contingent to  the son and never happen the remainder over to the daughter be adjudge good  though when it come out to be a estate tail vest in the father a contrary  judgement be give but this be no contingent executory devise of the equity but  be a devise that vest immediate contingent executory devise by law must vest  in a short time because they be not alienable till they be vest if he have  devise to her term out of the inheritance they will not be contingent devise  though they can not take effect in possession but be remainder for year and  such limitation of term have be disallow as will create a perpetuity or such  estate as can not be bar in the duke of Norfolk case Chan Cas vern the  declaration be of the trust of a term derive out of the estate previous to the  limitation in tail and so can not be bar mosely report by docking the entail  but here the devise be out of a reversion on a estate tail and if Litton  Litton have issue they or stride stride by suffer a recovery will have bar the  reversion and this interest create out of it behind the estate tail I allow  the case Mr attorneygeneral put with this addition if the purchaser have no  notice of the entail at the time of his purchase for then the term will cover  his purchaser but not because it be sever from the inheritance but from a new  equity that he be a innocent purchaser and have get the law of his side as to  the decree stride stride title be under the will of sir George stride Litton  Litton can not deprive he of his right of redemption in respect of his estate  for life but the defendant William Robinson Litton claim under the will of  Litton Litton only can have no great interest than be give he by the same will  and by the decree of Lord Harcourt before the say stride stride be to redeem  the say mortgage so as to have the say term attendant upon his say estate for  life he be order to pay to lady stride the say several sum advance for her  benefit out of the asset of the testator Litton Litton and apply in discharge  the say mortgage but the same be not decree to her in lieu and satisfaction of  all her interest in those term and therefore the assignment to be make be to  be subject to the further direction of the court and such assignment be draw  accord but where the court intend that another mortgage which be to one bridge  upon another estate shall attend the inheritance it be express order so by the  say decree and by their way of reason we may as well say that no one be  entitle to the equity but stride stride for the decree have provide no further  and there be no occasion to determine this question ante diem especial between  codefendants because if stride stride have child it will be at a end mosely  report er p Mr lutwych the testator direct that the mortgage shall be pay off  and discharge now if these be not absolute term they will be mortgage in the  mother hand contrary to this express direction though his will indeed may be  control by those who have a prior title suppose Litton Litton have take up  money on these mortgage can those who claim under he have redeem without pay  off all the money then that will have be mosely report a disposition of the  equity for so much and can not he as well discharge the term of the whole  equity if the testator design his mother these term as a security why do not  he direct that the other mortgage shall be take in with the pound he devise to  her and as to the objection of the same word pass two different interest if  Litton Litton have redeem these mortgage in his lifetime he will have have a  redeemable and a irredeemable interest in he at the same time the general word  that follow can defeat our devise no more than the several rentcharge grant by  the testator cro Elizabeth if the testator first devise the fee and after a  estate for life both devise shall take effect and this be not a void devise a  term for year can indeed be limit after a estate tail and therefore if the  testator have devise these term to lady stride for life remainder in tail  remainder over the remainder over will have be void but if one have a term for  year after a estate tail can be give it away can a man have a interest that  shall go to his executor which he can dispose of but the defendant contradict  himself for he claim these term and he be deceive in this point that he think  a term after a estate tail can be dispose of and this severance of the term  will not create a perpetuity but be a reversionary interest which may be bar  for the equitable interest in these term may be cut off by the several tenant  in tail because it be incident to their several estate and therefore capable  of their several quality to be bar c and so as the recovery enlarge the estate  it will enlarge the trust if the decree have determine this question then  William Robinson Litton have no right to redeem for the decree have give he  none Mr justice Denton it do not appear by the former decree that this  question be ever determine the testator have plain a power to devise these  term but from the whole scope of the will I think it evident that he design  her they only as security mosely report sir Robert Raymond this question  depend sole on the construction of the will and be only a devise of a equity  must be guide by the intention of the testator and I think it plain appear be  intend her only the money he first give several legacy out of his personal  estate and then he dispose of his real estate and the last clause as for and  concern all his manor land c explain his intention I do not mean that this can  defeat the first clause if it have be plain but as it be obscure I think it  may serve to explain it if the testator have a son he be to have all his land  if a daughter she be to have pound and the defendant William Robinson Litton  the estate he keep all his land together and when he write this last clause he  think he have make no disposal of any part of they the word discharge import  no more than pay off but the mortgage be then discharge as to the mortgagee  then he say the mortgage which be material word shall be keep on foot and the  word for her sole use and benefit if the testator intend to secure her only  the money can be apply no further but must be confine to that only and to  decree her the term will contradict the last clause which certain carry the  reversion in fee for can any one imagine he will give the reversion to the  defendant after such term if he have design his mother the interest in the  land he will have use plain word and have devise they to her in fee I ground  my opinion on the intention of the testator Lord chancellor I shall consider  the meaning of the will itself as far as I can collect it from the word the  testator give nothing to his mother he then have in he but direct that his  executor shall purchase these two term stand out and that they shall be assign  to his mother so that his intention be to purchase these mortgage term for her  all his father mortgage be to be pay out of his personal estate and consequent  they will sink into or attend the inheritance but these two be to be keep on  foot for her sole use and benefit not of those who be mosely report er p seize  of the inheritance but these word can be understand only of that interest the  executor be to purchase during the residue c be word of course and it mosely  report be pretty odd to construe the mother to have two distinct interest one  from the mortgagee that can not be bar by the tenant in tail of the estate and  another out of the reversion that can or to suppose that by the same word the  testator design to give her a redeemable estate which may continue as long as  the term themselves and a irredeemable one out of the reversion therefore the  decree must be reverse and be it adjudge that the equity of redemption belong  to William Robinson Litton the defendant and that he shall hold the mortgage  premise absolute against the plaintiff his executor and administrator and all  claim under the say dame Margaret stride decease and the plaintiff original  bill be dismiss this decree be affirm in parliament after great debate by lord  against on Thursday the that of march Ant Cas Monday November the that