case carter versus barnadiston refer to bagshaw v Spencer Ves sen Eq can ab pl  one seize in fee of the manor of a and b mortgage a for pound and by will  charge all his real estate with payment of his debt and devise a to c and b to  d and die the devisee of a shall compel the devisee of b to contribute to pay  the mortgage on a but if the will prove void then no contribution sir Michael  armin be seize in fee of the manor of Pickworth and Willoughby in Com linc by  his will date march devise that in case his personal estate and his estate in  Orton in Com Huntingdon shall not be sufficient to pay his debt and legacy as  in fact they be not then his executor shall receive the profit of his whole  real estate for the payment of his debt and legacy and after those shall be  pay he devise the manor of Pickworth and Willoughby to his uncle Evers armin  for life without waste and in case his uncle Evers shall have issue male then  to such issue male and his heir for ever and after the death of the say Evers  in case he shall leave no issue mala and after debt and legacy pay he devise  his manor of Pickworth to his nephew Thomas style in fee and that of  Willoughby to his nephew sir Thomas barnadiston in fee and make the say Evers  armin sir Thomas barnadiston Thomas style and Thomas Bristol executor peer  William afterward June the testator sir Michael armin mortgage Pickworth to  the lady Diana Hollis for the term of year for secure the sum of pound and  interest and in the December follow die leave Susanna and whether armin the  daughter and coheir of his elder brother sir William armin his heir at law it  be admit that the pound debt due from sir Michael armin by mortgage of  Pickworth be one of the debt charge by sir Michael will upon the real estate  and after the death of sir Michael armin Evers armin one of the executor and  devisees in the will of sir Michael enter upon the premise call Pickworth and  Willoughby and receive the profit apply they to his own use save that he keep  down the interest of the mortgage on Pickworth in January Evers armin suffer  recovery ofboth the manor of Pickworth and Willoughby wherein he be vouchee  which be to the use of himself the say Evers armin and his heir and at the  time when these recovery be suffer both the coheir of sir Michael videlicet  Susanna afterward lady Bellasis and whether afterward countess of Torrington  be of age and unmarried afterward Evers armin make his will date that october  and devise his two manor of Pickworth and Willoughby to his grandson armin  Bullingham and the heir of his body remainder to his granddaughter Elizabeth  sander now Elizabeth Mortimer and her heir and d June die at which time both  the heir at law be under coverture upon which decease of Evers armin no person  for some time enter upon Pickworth but at length Heneage peer William the  assignee of lady Diana hollis mortgage enter thereupon and as to Willoughby  sir Thomas barnadiston peer William er p enter upon it immediate after Evers  armins death claim the same by virtue of the remainder limit to he by the will  of sir Michael armin d march sir Thomas barnadiston mortgage Willoughby to sir  Richard Rothwell for pound for the term of year and give a statute in pound  penalty for the performance of covenant that Nov armin Bullingham the devisee  of Evers armin enter upon the manor of Willoughby claim title thereto and put  his cattle into some part of the land upon which ensue a replevin and the  special verdict in lev and salk ld ray and see do v Holmes will Bla Rep by  lease and release that and that July sir Thomas barnadiston mortgage the  premise to sir Samuel barnadiston and his heir to secure pound and by the  usual proviso at the end of the mortgage it be agree that sir Thomas  barnadiston shall continue in possession till breach of the proviso in Jan the  suit be compromise between sir Thomas barnadiston and armin Bullingham who in  Hilary term the same year both join in a fine and recovery of the manor of  Willoughby in which they be both vouch and the use be declare that armin  Bullingham shall have a rentcharge of pound per annum in feesimple issue out  of the manor of Willoughby with power of distress and the say manor therewith  charge be limit to the use of sir Thomas barnadiston and his heir which  recovery bar the remainder in fee limit to Elizabeth sander as to the manor of  Willoughby but there be no recovery suffer of the manor of Pickworth peer  William in August sir Thomas barnadiston die leave the defendant sir Thomas  barnadiston his son and heir the same month also armin Bullingham die without  issue whereupon the rentcharge of pound per annum descend to Nicholas  Bullingham his cousin and heir and Pickworth be claim by Elizabeth Mortimer  granddaughter and heir of Evers armin and late Elizabeth sander by indenture  of bargain and sale enrol Nicholas Bullingham sell and convey his rentcharge  in fee of pound per annum and the arrear thereof to John Coppen and his heir  for pound the defendant Samuel barnadiston claim by mesne assignment the  mortgage make of Willoughby to sir Richard Rothwell and sir Samuel barnadiston  and the statute staple for pound for performance of covenant afterward Samuel  barnadiston and Coppen the latter have commence a suit in equity for the  recovery of his rentcharge by reason of the prior encumbrance of Rothwells  mortgage come to a agreement and obtain a decree by consent by which the manor  of Willoughby be decree of to be sell and Coppen to be first pay pound be the  compute value of the rentcharge and arrear and afterward Samuel barnadiston be  to be pay what be due to he the plaintiff carter claim title to Pickworth  under Thomas style the devisee in remainder bring his bill in easter term  against all the claimant videlicet against Heneage the mortgagee to have a  redemption of that mortgage peer William and as against the defendant Mortimer  and his wife to controvert with they the right of redemption of Pickworth in  regard Mortimer and his wife claim Pickworth as heir at law of Evers armin and  against Coppen and the barnadiston who claim estate be and interest in  Willoughby to have a contribution from Willoughby of its proportion of the  debt of pound and interest and to reimburse Pickworth what that have pay more  than its share the testator sir Michael armin have by his will charge all his  real estate with the payment of his debt on hear this cause march before Lord  chancellor Cowper it be decree that as against Mortimer and his wife the  plaintiff carter shall be admit to a redemption of Pickworth and that as  against the other defendant he shall have a contribution out of Willoughby in  order to reimburse Pickworth what that have pay beyond its proportion d may on  a appeal of the defendant Coppen sir Robert barnadiston and Samuel barnadiston  to the house of peer the lord upon take the advice of all the judge be of  opinion that neither the appellant as claim under Evers armin nor the  respondent carter as claim under Thomas style have any title that the executor  of sir Michael armin have only a chattel interest for payment of debt that the  freehold be well vest martial v Holloway swan in Evers armin and that the  remainder to Thomas style in default of Evers armins leave a son be a  contingent remainder and consequent bar by the recovery suffer by Evers armin  and therefore that the plaintiff carter claim under that remainder peer  William er p to style bad no title nor any right to a contribution out of  Willoughby whereupon peer William they reverse Lord cowpers decree but in  their decree of reversal declare that this reversal shall be without prejudice  to the right of the heir at law of sir Michael armin or Evers armin to have  such contribution may d bro p c in Susanna one of the coheir of sir Michael  armin who be call lady Bellasis and who have afterward marry James Fortrey die  without issue her husband Fortrey survive and whether the other daughter who  first marry sir John Woodhouse and afterward Lord crew and after that Lord  Torrington survive her sister the lady Bellasis do by deed of bargain and sale  enrol and by deed of feoff convey the manor of Willoughby and Pickworth to the  plaintiff carter and his heir whereupon the plaintiff carter bring a new bill  in equity against the now defendants as to Pickworth to have the right of  redemption betwixt he and Mortimer and his wife settle and if the right of  redemption shall be decree to Mortimer and his wife then to compel they to  redeem Pickworth or to be foreclose and as to Willoughby the plaintiff carter  have now buy in the right of the testator sir Michael armins heir at law that  the defendant who have be in possession thereof may account for the rend and  profit and that the plaintiff carter may have the possession of Willoughby  deliver to he or if it shall appear that his title to Willoughby or any part  thereof be bar that then the plaintiff carter may have a contribution thereof  from Willoughby or such part thereof as be so bar towards satisfaction of the  debt of pound and interest due on the mortgage of Pickworth and to reimburse  Pickworth what it have pay more than its share peer William this cause have be  often very solemnly debate before the master of the roll who on the that of  march deliver his opinion Reg lib a fol he hold as the lord by the assistance  of the judge have before resolve that the remainder limit to sir Thomas  barnadiston and style be contingent remainder and destroy by the common  recovery suffer by Evers armin and the question now be whether the remainder  in fee be in abeyance or do descend to the testator sir Michael heir at law  his honour think that here can be no question but that as by feoff and other  commonlaw conveyance the remainder in fee may be put into abeyance accord to  Inst so it may be also by a devise that the statute of will Henry enable every  body seize in fee of land to dispose thereof by will accord to his pleasure so  that by that statute the testator may mould and dispose of his land in what  manner and form he think fit provide it be conformable to the rule of law and  that if by a commonlaw conveyance the owner of land may make contingent  remainder and place the fee in abeyance a strong may he do so if lie think  proper by will for which he cite Mod tailor and Bidulphs case where c I north  say that a contingent remainder may arise by conveyance as well as by will and  speak of devise observe that one may devise land to a infant in ventre sa mere  and this will be good by way of executory devise but say Lord north if a  estate be give to a for peer William life remainder to the right heir of b  which must be intend of a devise for he be speak of will for some time before  in such case this be a contingent remainder and void if a die during the life  of b for that the fee do not descend during the life of b to support the  contingent remainder that as to the case of Plunkett and Holmes lev I side  raym and of Purefoy and Roger sand lev keb which be cite as in point to prove  the fee descend to the heir at law in case of a will and be not in abeyance  that of Plunkett and Holmes be where one seize of land in fee devise they to  his old son Thomas for life and if his say old son Thomas shall die without  issue live at his death then to the testator other son Leonard and his heir  but if Thomas shall have issue at his death then the fee to remain to the  right heir of the old son Thomas the testator die after which the old son  Thomas enter and suffer a recovery and die without issue and the question be  whether the remainder limit to Leonard be destroy adjudge that it be and plain  it be so because it be a contingent remainder but that this resolution affect  not the principal case it only prove that the recovery by Evers armin bar the  peer William er p contingent remainder limit to the issue of Evers armin as  likewise the contingent remainder limit to sir Thomas barnadiston and style  that indeed in the above cite case it be say by some of the judge that the  reversion descend to the testator old son Thomas until the contingency happen  but there be no need of make this point any part of the question before the  court and it seem unnecessary and extrajudicial peer William throw in for  whether the fee do or do not descend to t testator heir at law Thomas still  the recovery suffer by Thomas the devisee for life must in either case be a  equal bar to the contingent remainder to Leonard but the reason of their  opinion seem to be for that the devise of the fee in that case be to the  testator heir at law and where the devise be to the testator heir at law the  fee must descend and such heir at law will take by descent it be true as to  the case of Purefoy and Roger where Samson Shelton seize of land in fee devise  they to his wife for life that if God shall bless her with a son and the wife  shall call that son by the testator Christian and surname then the testator  give the inheritance of this land to such son after his mother death and if  such son shall die before his age of twentyone then to the testator right heir  after the death of his wife the testator die and his wife marry again and it  be hold so plain by hale c I that he will not permit sander to argue it that  the reversion in fee in that case descend to the heir at law of the testator  until the son shall be bear and that when the testator heir at law have the  reversion in fee convey it to the testator wife and her second husband and  their heir and make that conveyance before the birth of the wife son by the  second marriage it must destroy the contingent remainder all that may be allow  to be law but still it differ from the principal case because in the case of  Purefoy and Roger the devise be to the testator right heir he admit it be say  if such son as his wife shall have by her second husband shall die before  twentyone however it be a devise by the testator to his own right heir and in  all case where the devise be to the heir at law the reversion peer William  descend to he whereas in the principal case the devise be not to the testator  heir at law no I not upon any contingency on the contrary where the devise be  to Evers armin for life and if he have issue male then to such issue male in  fee and if he have no issue male then part of the testator estate be devise to  barnadiston in fee and the other part to style in fee it be plain that Evers  armin either must or must not leave issue male and in either case the fee be  equal give from the testator heir under who the plaintiff carter claim so that  here be no reversion contingency or possibility that appear to be leave for  the testator heir he have shut the door every way against they whether Evers  armin shall leave issue male or not that the principal case be much strong  than where the devise be to a for life remainder to the right heir of I S  because in that case I S may not die in the life of a and then the testator  heir will take and so there may be something say why in that case the  reversion shall descend until the contingency one way or other fall out but  here the testator express his intention to give the inheritance of the premise  in all event from his heir at law whether Evers armin shall leave issue male  or not and that the contingency shall be only betwixt the issue male of Evers  armin and the devisees over videlicet style and barnadiston and plain design  no contingency chance or possibility to his own heir also the master of the  roll say that where one devise land to a for life remainder to the right heir  of I S then peer William live though the remainder in fee be in abeyance yet  there be a possibility leave in the heir and that this be plain even in the  case of a grant roll Abr pl and in h b where a grant be make to a for life  remainder to the right heir of b and a die live b so that b can have no heir  the grantor shall have his land again for want of any other person to take  they and this possibility seem such a interest as entitle the donor Littleton  report to enter for the forfeiture make by the feoff of tenant for life for  that his estate be as much determine as it will have be by his death and it be  absurd that tenant for life by a unlawful act videlicet by destroy the  contingent reminder shall gain to himself a indefeasible feesimple or like the  possibility that be upon a grant at commonlaw to a man and the heir of his  body for peer William er p there though the grantor have no reversion yet he  Inst may enter when the grantee die without issue and that therefore in the  principal case when Evers armin suffer a common recovery by which his estate  for life determine as much as by his death and by which the contingent  remainder be destroy suppose the heir at law of sir Michael armin the testator  may enter it be however a disputable point and proper to be determine at law  and there be no encumbrance upon the premise to cover the same in from a  ejectment and it be a mere legal title the court say the bill shall be retain  for a year to the intent that in the mean time the plaintiff may try his title  in a ejectment also in regard the plaintiff have purchase in the title of the  heir at law stand in their place and be therefore entitle to the aid of a  court of equity against the defendant and peer William inter all against the  defendant Coppen be be a purchaser with notice videlicet with notice of sir  Michael armins will upon this point in question therefore in order to this  trial the plaintiff be entitle to have all the deed and write produce the  plaintiff carter be dissatisfy with this decree appeal to Lord chancellor  Parker upon which the cause be hear before his lordship who at first send it  to the master to state the matter and after it have come on upon the report  and have hold two day debate hisLordship mic term deliver his opinion as to  the remainder in fee be in abeyance fearne count Rem seq or in the custody of  the law or as some call it in lap law his lordship much expose that notion say  the most reasonable inference from it be that it shall be for the preservation  of this remainder but since the construe the fee to be in abeyance will on the  contrary tend to the manifest destruction thereof and since nothing but  necessity in any case shall occasion the feesimple to be in abeyance since the  diversity take by the book be between a will and a commonlaw conveyance and  that in case of a will where the remainder be devise in contingency it be hold  that the reversion in fee descend to the heir at law in the mean time and that  whatsoever estate be not dispose of by the testator descend to the heir his  lordship say he shall abide by that opinion and be very clear in it Hopkins v  Hopkins can tem Talb peer William that it be a strange construction to take  pain by a strain in law to place a remainder in fee in frown or in abeyance on  purpose that the testator intention shall be whole frustrate and that the  tenant for life may be under a temptation to disappoint the will by destroy  the contingent remainder by a recovery or feoff which in this case must be  admit to be tortuous conveyance ray what be still more extraordinary that the  tenant for life must be reward for this wrong and that he who before have but  a estate for life shall gain a absolute and indefeasible feesimple and this by  do a wrongful act which will be to take advantage of his own wrong both  against law and reason that the case of plunket and Holmes be a resolution in  point that where the remainder in fee be devise in contingency the fee descend  to the heir until the contingency happen and though he shall admit that  resolution to be extrajudicial and not direct to the point then in question  yet the opinion of four learned judge must be of great weight especial against  the notion which be contend for by the other side and that the case of Purefoy  and Roger in sander be equal in point and the interruption which Lord hale  give to sander who attempt to argue this do not proceed from any heat or  impatience in Lord hale who be master of a great deal of temper as well as  learning but from the result of his fix judgement and opinion that where after  a estate for life the remainder in fee be devise upon a contingency the  feesimple not be dispose of until the contingency happen must in the mean time  descend to the heir and to say that in these case of plunket and Holmes and  Purefoy and Roger the devise over of the fee after the peer William contingent  devise in fee be to the testator right heir and that this distinguish it from  the principal case and make the heir take by descent be hardly agreeable to  the rule of law for when the testator have devise the remainder in fee upon so  remote a contingency have in that manner give a fee he can go no far nor  devise any remainder over and therefore in such case I the devise over of the  feesimple will be void whether make to the heir or to any other person that  these devise to the issue male of Evers armin in fee if there shall be any  issue male or if there shall be none then that Willoughby shall go to  barnadiston peer William er p in fee and Pickworth to style in fee be make  upon contingency that never happen Qure for the contingency of Evers armins  die without issue male actual happen it be the same thing as if those devise  have never be make and consequent the reversion in fee descend to the testator  heir at law see note to Purefoy v Roger williams sand also as to what have be  contend for by the plaintiff counsel that the executor of sir Michael armin  shall hold over notwithstanding they misapply the profit and do not with they  pay the debt of sir Michael Hutchinson v massareene ba be he admit that if any  be to hold over it must be the executor of sir Michael who be the devisees of  this uncertain interest until the debt be pay but it will be very strange to  say that because Evers armin one of the executor do not apply the rend as he  ought to have do towards payment of the debt therefore and for that reason he  that act wrongful shall hold over this will be direct peer William to let a  man take advantage of his own wrong and be the same as to say that the long  the executor misapply the profit the long they shall bold the estate nay they  shall hold it pure because they do the wrong that therefore this term or  uncertain interest shall determine at such time as the executor may have pay  the debt if they have duly apply the rend c and as to the profit misapply the  creditor must pursue the trustee for such profit and if the uncertain interest  of the trustee for the payment of the debt be become vest by survivorship in  any three person such person be bar by fine and nonclaim as to the bar which  be insist on by the defendant with regard to the moiety of the premise by mean  of the fine levy by Bullingham and barnadiston in hill term for as to lady  Bellasiss moiety it be allow the fine will be no bar lady Bellasis be then a  feme covert and she have die a feme covert within five year before the  commencement of the suit it have be object that part Finis nothing to have in  regard some few month before the levy the say fine sir Thomas barnadiston who  be say to be the seize of the premise do by lease and release convey the  inheritance of the premise to sir Samuel barnadiston in mortgage and though  the former have the possession of the estate yet this be only under the  proviso of the mortgage as tenant at will to the mortgagee until default of  payment and it be say that since c I holt in deliver the resolution of the  court in the case of hunt and bourn salk have declare that if lessee for year  levy a fine without first make a feoff the fine will be void as to the make of  any title by way of nonclaim by reason of the peer William imbecility of his  estate and that part Finis nothing to have with which declaration of Lord holt  Lord chancellor agree it be from thence infer that if where lessee for year  levy a fine it may be say that the fine be void for that part Finis nothing to  have a strong it may be so say in the case of tenant at will be levy a fine  but Lord chancellor hold that in this case it can not be say that part Finis  nothing to have because armin Bullingham on the death of Evers armin and as  his devisee have a right against all person whatsoever but the heir of sir  Michael armin the testator and barnadiston enter upon he as a seize and though  barnadiston afterward mortgage the premise in fee yet he continue in  possession thereof and join with Bullingham in the fine it can not be say that  part Finis nothing to have when one of they videlicet barnadiston have the  possession and the other of they videlicet Bullingham bad the right to the  land against barnadiston and also against his mortgagee also his lordship hold  that the statute of limitation bar the plaintiff as to the whole because it be  find by the master report that at the time of the common recovery suffer by  Evers armin both the coheir of sir Michael armin be of age and unmarried that  upon this recovery suffer by Evers armin in he be but tenant for life and the  coheir have the reversion in fee descend to they they have a right of entry  which then commence but have no new right of entry upon the death of Evers  armin peer William and that this be not like the common case of tenant for  life with the reversion in fee to I S where it be true the reversioner in fee  be not bind to watch after any forfeiture vide Rep he may stay till the death  of tenant for life but here the only title which the coheir can possible have  must be by the forfeiture of Evers armin for if there be no forfeiture then  upon Evers armins death the remainder peer William er p must either go to the  issue male of Evers arm if any or if none to barnadiston and style and so this  case differ from that of a bare tenant for life reversion in fee last as to  the contribution which the plaintiff claim out of Willoughby in respect of the  mortgage debt upon Pickworth this the court say be intend by the testator sir  Michael armin for the benefit of style and relate only to the division of  estate between style and barnadiston but when the will be disappoint by the  recovery of Evers armin who thereby forfeit his estate for life and bar both  the contingent remainder to style and barnadiston and whereby the coheir of  sir Michael armin become entitle to both the manor so that they come into one  hand the right of contribution be at a end for a man can not contribute to  himself and the right of contribution as it be give by the will so be it in  force only while the party claim under the will and not where the demand be  set up in defiance thereof all which point his lordship say be to he pretty  clear however if the party desire that this matter shall be make a case upon  the master report for the opinion of the judge it shall go to the judge of c b  and that by this he do a kindness to both party in save they the charge of a  trial at bar and of a long special verdict and the great length of peer  William time that this will of course take up before they can come to have the  point argue it appear from Lord macclesfield note that this case be soon after  compromise by the party there be no limitation to Elizabeth sander but the  remainder after the estate tail to armin Bullingham be to the heir male of the  body of Elizabeth sander and in default of such issue to the heir of her body  with remainder to the testator own right heir and Elizabeth claim as right  heir of Evers armin Reg lib and his lordship opinion as to the point of  contribution be not shake by any of the subsequent proceed in the case since  by the ultimate decision of it the question do not arise between the two  devisees vide post see more as to contribution c in Howel v price ante note  vide vern do v Simpson east do v Nicholls I b c Qure yet upon what foundation  this distinction between a remainder create by a conveyance and one arise by  will depend since there do not appear to be any such difference take in the  case of plunket and Holmes and Purefoy and Roger