case tempt Talbot case jane SABBARTON a infant by thomas part Esq her next  friend versus benjamin SABBARTON dulcibella SABBARTON widow robert Kidwell  William SABBARTON a infant by the say robert Kidwell his guardian Joel pocock  giles pocock sarah pocock and thomas DIGGLES and sarah his wife ante S c I S  by will recite that a marriage be propose between his niece a and his cousin b  devise to trustee diverse freehold house c and the rend due or to become due  and money in the orphan fund and the produce of the same and bank stock and  money due thereon in trust to pay the rend and profit to a if live at his  decease during life or to such person as she by write shall appoint with or  without the consent of any husband but if she shall marry b then after the  decease of a in trust for b during life and after his decease in trust for the  first and other son successive of a and b and their heir male and for want of  such issue in trust for the daughter of a and b equal to be divide between  they and for want of issue of that marriage in trust for the issue of the  survivor of they and if neither of they leave issue in trust for c for life  with remainder for such child and child as his brother d shall leave live at  his decease or that d s wife shall be ensient of that shall attain the age of  twentyone and to the heir executor c of such child c as they shall respective  attain the age of twentyone year and if none attain that age to his own right  heir but if a shall not marry b then in trust after her decease for c for life  remainder for the child and child of d ut above and if none attain the age of  twentyone to his own right heir and devise the residue of his estate real and  personal to a and c equal to be divide between they their heir executor c and  make other executor and die a and b intermarry b die without issue c marry and  die without issue a die without issue have make her will and appoint a  executor d die before a leave issue two son e and f above twentyone year of  age e die before a intestate leave g a daughter a infant now live f be also  live the orphan case tempt Talbot er p fund and bank stock be not transfer but  remain as at the testator death the bequest of these consider as a bequest of  a term for year in land to the child and child of d ut above be hold to be  good as this case have happen Joseph Sabbarton late of London merchant make  his will date April and so much thereof as regard the present question be in  the word follow that be to say and whereas a marriage be propose to he have  and solemnize by and between the say Catherine Corr and Benjamin Sabbarton jun  old son of my cousin Benjamin Sabbarton sen of the city of Norwich weaver now  I do hereby devise and bequeathe unto the say Thomas Botterell and John young  and the survivor of they and the heir executor and administrator of such  survivor all that case tempt Talbot my freehold house outhouse barn coalhouse  stable garden and orchard at Enfield in the county of Middlesex which I late  purchase of patience Ashfield and also all and every my freehold house message  land tenement and hereditament situate in or near queenstreet and Bowlane  London or either of they or any court or court adjacent thereunto which I late  purchase of John calendar and Edward calendar or either of they together with  such rend as shall be due and in arrear for the same premise at the time of my  decease and after that shall become due and also the sum of pound S d in the  orphan fund of the chamber of London and the interest increase and produce of  the same fund that shall be due at the time of my decease and after that  become due and Payable and also the sum of pound capital stock in the  corporation of the bank of England and all money due thereon at the time of my  decease or that shall thereafter become due and Payable for the same to and  for the several use trust intent and purpose hereafter mention limit and  declare that be to say in trust that they the say Thomas Botterell and John  young and the survivor of they and the heir executor and administrator of such  survivor shall pay or cause to be pay all and singular the say rend issue  profit and produce of all the say message land tenement and hereditament at  Enfield and in or near Queenstreet and Bowlane London and orphan fund in the  chamber of London and bank stock to the say Catherine Corr if live at the time  of my decease and not otherwise quarterly halfyearly or otherwise as the same  be and shall become due pay and Payable for and during the term of her natural  life or unto such person or person as she shall by any write under her hand  direct and appoint with or without the consent of any husband she may have and  whether the hereby propose marriage or any other marriage of her to any other  person may or shall happen or notwithstanding she shall never marry case tempt  Talbot but in case she the say Catherine Corr do or shall marry the say  Benjamin Sabbarton jun then that they the say Thomas Botterell and John young  and the survivor of they and the heir executor and administrator of such  survivor shall from and after the decease of the say Catherine Corr stand  seize interest and possess of the say premise in trust for the say Benjamin  Sabbarton jun for and during the term of his natural life and from and after  his decease then in trust to and for the first son lawful beget of the say  Catherine Corr and the say Benjamin Sabbarton jun and the heir male of such  first son and so on successive to the second three four and five and all and  every other son and son of the say Catherine Corr and Benjamin Sabbarlon jun  as the shall stand in seniority of age and priority of birth and their heir  male respective and for want of such issue male then in trust to and for the  use and behoof of the daughter and daughter lawful beget of the say Catherine  Corr and Benjamin Sabbarton jun equal to be divide between they share and  share alike and for want and in default of any lawful issue of the hereby  propose marriage between the say Catherine Corr and the say Benjamin Sabbarton  jun then in trust to and for all the issue male and female lawful beget of the  body of the survivor of they equal to be divide between they share and share  alike and in case neither of they shall leave any lawful issue there seem to  be no diversity betwixt a devise of a term to one for life and if he die  without issue remainder over and a devise thereof to one for life with such  remainder if he die leave no issue for both these devise seem equal relative  to the failure of issue at any time after the testator death p will say vide e  contra bro Charles Rep then in trust to and for my say sister Sarah for and  during the term of her natural life and from and after her decease in trust to  and for the only proper use and behoof of all such child and child lawful  beget as my say brother John shall at the time of his death leave live or that  his wife shall be then ensient or in child with that shall live and attain to  the age of twentyone year and to the heir executor administrator and assign of  such child and child equal to be divide between they share and share alike as  they shall respective attain the say age of twentyone year and in case case  tempt Talbot er p no such child of my case tempt Talbot say brother John shall  live to attain the say age of twentyone year then I give devise and bequeathe  the say house outhouse barn stable coalhouse garden and orchard at Enfield  house land tenement and hereditament in or near queenstreet and bow lane  London and orphan fund in the chamber of London and bank to my own right heir  for ever but in case the say Catherine Corr shall not marry the say Benjamin  Sabbarton jun then in trust that they the say Thomas Botterell and John young  and the survivor of they and the heir executor and administrator of such  survivor shall from and immediate after the decease of his say Catherine Corr  stand seize interest and possess of the say lastmentioned premise in trust to  and for my say sister Sarah for and during the term of her natural life and  from and after her decease in trust to and for the only proper use and behoof  of all such child and child lawful beget as my say brother John shall at the  time of his death leave live or that his wife shall be then ensient or in  child with that shall live and attain the age of twentyone year and to the  heir executor administrator and assign of such child and child equal to be  divide between they share and share alike as they shall respective attain the  say age of twentyone year and in case no such child of my say brother John  shall live to attain the say age of twentyone year then I give devise and  bequeathe the say lastmentioned premise to my own right heir for ever and as  to the residue of the say testator estate he by his say will dispose thereof  in the word follow videlicet all the rest residue and remainder of my ready  money plate ring jewel clock watch note bill bind mortgage household good and  all other my estate and estate as well real as personal wheresoever and  whatsoever either possession reversion or expectance after my debt and funeral  charge shall be full pay and satisfy I give devise and bequeathe unto my say  sister Sarah and the say Catherine Corr equal to be divide between case tempt  Talbot they to hold unto they my say sister Sarah and the say Catherine Corr  their heir executor administrator and assign for ever and I do hereby make  constitute and appoint my say sister Sarah and the say Catherine Corr my joint  residuary legatee Reg lib b fol the say testator appoint George Vergoe and  Thomas Pilkington executor of his say will and die sometime in the month of  January without revoke or alter the same and the say executor prove the say  will and the trust be now vest in the defendant Diggles and his wife the  marriage propose between Benjamin Sabbarton the young and Catherine Corr take  effect after the death of the say testator and Sarah the testator sister about  the that of march intermarry with the defendant Robert Kidwell and die without  issue the that of August and be be her administrator the say Benjamin  Sabbarton the young die the d of December without ever have have any issue and  the say Catherine his wife survive he and die on the that of September without  have ever have any issue have make her will and thereof appoint the say  Kidwell executor in trust who prove the same John Sabbarton the say testator  Joseph Sabbartons brother die about the that of November leave issue two son  namely Joseph Sabbarton and Benjamin Sabbarton then both of the age of  twentyone year and upward Joseph Sabbarton the old son of the say John  Sabbarton the say testator say brother die in January intestate leave issue  only one child jane a infant now live and the say Benjamin the other son of  the say John Sabbarton be also live and neither the say sum of pound be d in  the orphan fund or the say bank stock have be ever transfer but the same  remain in the same condition as they do at the time of the make of the say  will by the say testator upon the hear of two cause before the late Lord  chancellor upon the say that of November case tempt Talbot one between the say  jane Sabbarlon the infant by her next friend plaintiff and the say Benjamin  Sabbarton her uncle Robert Kidwell and Thomas Diggles and his wife and other  defendant and the other between the say Robert Kidwell plaintilt and the say  Thomas Diggles and his wife jane Sabbarton Benjamin Sabbarton and other  defendant it be order among other thing that a case be make for the opinion of  his majesty court of king bench on the follow question if a term for year in  land have be bequeathe in the same manner as the trust of the orphan and bank  stock be limit by this will whether the limitation to all such child and child  lawful beget as the testator brother John shall at the time case tempt Talbot  er p of his death leave live or that his wife shall be then ensient or with  child with that shall live to attain the age of twentyone year and to the heir  executor administrator and assign of such child or child equal to be divide  between they share and share alike as they shall respective attain the age of  twentyone year whether that will have be good in the case that bath happen  whether the word die without issue in the case of a limitation of chattel real  or personal be to be construe to mean a general failure of issue or such a  failure as be to happen within the compass of a life have be a question of  much diversity of opinion in the book do v Merrifield ante cite forth v  Chalpman p will Nicholls v Hooper ibidem Hugh v sayer ibidem Nickolls v  skinner Prec in Chanc Kelly v foul bro PC and Edward bro PC Pinbury v Elkin p  will Prec in Chanc c Pleydell v Pleydell p will Tagget v gaunt ibidem Maddox v  Stains p will Stanley v leigh p will Higgins v Dowler p will the above case of  Sabbarton v Sabbarton Atkinson v Hutchinson p will read v Snell atk Exel v  Wallace Ves Sheffield v Lord orrery atk chamberlain v Jacob Agnbl Rep Sheppard  v Lessingham ibidem Lampley v blower atk knight v Ellis bro Charles Rep be  case in which the court hold that the word if the first devisee die without  issue must be intend to mean without issue live at his death but accord to the  decision of several modern case it shall seem as if the court have adopt a  different rule of construction videlicet that the word die without issue will  prima fancy be intend to mean a indefinite failure of issue unless the  contrary appear from other circumstance Richard v lady Abergavenny vern Clare  v Clare ante green v rod atk cite Milward v Milward ibidem cite beauclerk v  dorm atk saltern v saltern ibidem earl of Stafford v Buckley Ves Butterfield v  Butterfield Ves attorneygeneral v hire bro Charles Rep big v benseley bro  Charles Rep earl of Chatham v Tothill bro PC and Edward bro PC glover v  Strothoff bro Charles Rep fearne count Rem on hear counsel on both side and  consideration of this case we be of opinion that if a term for year in land  have be bequeathe in the same manner as the orphan and bank stock be limit by  this will the limitation to all such child and child lawful beget as the  testator brother John shall at the time of his death leave live or that his  wife shall be then ensient with that shall live to attain the age of twentyone  year and to the heir executor administrator and assign of such child or child  equal to be divide between they share and share alike as they shall respective  attain the age of twentyone year will have be good in the case that have  happen W lee e probin f page W chapel