brown case DISCOUNTESS dowager Falkland appellant Lytton Lytton and another  respondent that February Mews dig xv Rep in Ch vern see l r Eq a devise of  land out of settlement will pass as well those land of which the testator be  seize in fee at the time of make his will as those which be comprise in a  settlement make on his marriage the particular use of which be determine by  his have no male issue sir Roland Lytton be seize in fee of the manor of  Knebworth Letchworth Hanchetts Maudlebury Broxburne alias Canwicks Ansty  HalfHide and Homelyes and of diverse message land and hereditament in the  county of Hertford and also of the manor of StotfoldNewnham and StotfoldBrayes  and diverse message land and hereditament in the county of Bedford and he have  issue by Judith his first wife four child namely William Roland Judith and Ann  and by Rebecca his second wife one child namely the appellant lady Falkland  Judith marry sir Nicholas stride who have issue by her sir George stride the  respondent Lytton stride father and sir Francis Russell Bart marry the other  daughter Ann now the respondent dame Ann Russell sir Roland upon the marriage  of his old son William with mary Harrison by indenture of lease and release  date the that and that of February settle the manor of Maudlebury and  Broxburne alias Canwicks and diverse other land and hereditament of the value  of pound per and upon William for life with remainder to the say mary for life  for her jointure remainder to the heir male of the body of William by the say  mary remainder to sir Roland and the heir male of his body remainder in fee to  his own right heir and as to the wood and woodland they be limit to the use of  sir Roland for life remainder to William for life remainder to trustee to  preserve the contingent remainder remainder to the first and other son of  William by mary his wife in tail male remainder to trustee to brown er p raise  portion for daughter remainder to his first and other son by any other wife in  tail male remainder to sir Roland in tail male remainder to sir Roland and his  heir and by this deed the manor of HalfHide Homelyes StotfoldNewnham and  StotfoldBrayes be settle upon William and the heir male of his body by the say  mary his wife with remainder to sir Roland and the heir male of his body  remainder in fee to sir Roland right heir and the manor of Knebworth  Letchworth and Hanchetts be by the same deed settle upon sir Roland for life  remainder to William for life remainder to his first and other son in tail  male remainder in fee to the right heir of sir Roland in Hilary term sir  Roland Lytton levy a fine of such part of the estate as be limit to he in tail  male and by deed date the d of October in that year in order to bar such brown  entail and enable he to have the free disposition thereof and to settle the  same in his own name and blood sir Roland convey all the premise comprise in  such fine to trustee and their heir in trust for Roland his young son for life  then in trust for the first and other son of Roland the son successive in tail  male then for such person and estate as sir Roland shall by deed or will  appoint and in default of such appointment in trust for his own right heir for  ever by another deed date the that of August sir Roland settle the manor of  Ansty upon himself for life remainder to Roland his son for ninetynine year if  he shall so long live remainder to the first and other son of Roland the son  successive in tail male remainder in fee to sir Roland right heir and by this  deed also the manor of StotfoldNewnham and StotfoldBrayes be vest in trustee  and their heir in trust for Roland the son for ninetynine year if he shall so  long live with remainder to his first and other son in tail male remainder to  the use of the right heir of sir Roland in September sir Roland Lytton make  his will and thereby devise certain house in London to his say young son  Roland and his issue male with remainder to his own right heir after the death  of sir Roland sir William Lytton his old son marry Philippa his second wife  and upon that occasion by indenture date the that of June he settle his land  in Letchworth of the value of pound per and on her for life for her jointure  and in bar of dower in Roland the son die without issue whereupon sir William  become seize in feesimple of the manor of Ansty and Stotfold and the house in  London the particular use of the settlement of and of sir Roland will be spend  and determine on the that of march sir William Lytton make his will and after  devise to his wife Philippa two message in Letchworth for her life and other  land there during her widowhood he proceed as follow videlicet item I give and  devise to the say Lytton stride his heir and assign for ever all other my  message land tenement and hereditament whatsoever out of settlement to have  and to hold the say message land tenement hereditament and premise with their  and every of their appurtenance unto the say Lytton stride his heir and assign  for ever provide always and upon this condition that the say Lytton stride and  his heir or such other person or person who shall possess and enjoy the say  message land and premise or any part thereof in case the say dame Philippa my  wife shall be with child at the time of my decease and shall be deliver  thereof after my decease and the same shall happen to be a daughter or if at  the time of my decease I shall have a daughter live shall well and true pay or  cause to be pay unto such daughter either bear in my lifetime or after my  decease the sum of brown pound of lawful English money at or in my  mansionhouse at Knebworth aforesaid at such time as such daughter shall attain  to her age of eighteen year or day of marriage which shall first happen and in  default of payment thereof or any part thereof my will be and I do hereby give  full power unto such daughter and her assign into the say message land and  premise with the appurtenance to enter and the same to hold possess and enjoy  until out of the rend issue and profit thereof she shall be full satisfy and  pay the sum of pound with interest and damage for the forbearance thereof from  the time the same be above appoint to be pay together with all reasonable cost  and damage occasion by such brown er p default of payment and also provide the  say Lytton stride do change his surname from stride to Lytton and do for the  future go and be call by the name of Lytton and not by the name of stride and  in case the say Lytton stride do not change his surname from stride to Lytton  as above mention the say devise and bequest to he make of the say message land  tenement and hereditament out of settlement shall whole cease and be void and  then and from thenceforth I give and devise the say message land tenement and  hereditament with their appurtenance out of settlement unto the say dame Ann  Russell her heir and assign for ever subject and liable to the payment of the  say pound to such daughter in manner and form as be provide in the proviso  above mention and express and the say testator give the residue of his  personal estate unto the say dame Ann Russell and Lytton stride and appoint  they executor of his will in January the testator sir William Lytton die  without issue seize of all the say estate of the value of pound per and and  possess of a personal estate to the amount of pound and upward after the  testator death a question arise touch what part of his estate pass to Lytton  stride by the devise of all the land out of settlement and in order to  determine this question two several suit be institute in the court of chancery  the one by Lytton stride as claim all the land devise by the testator will and  the other by the lady Falkland who as one of the three coheir at law of sir  Roland Lytton claim one three of all the land comprise in the settlement of  and and to both these suit lady Russell be make a party because as another of  the coheir Lytton stride himself be the three she also claim a three part of  the land in those settlement on the that of June both these cause be hear  together before the Lord chancellor Cowper assist by the master of the roll  the Lord chief justice Trevor and Mr justice Tracy when the court be of  opinion and accord decree that all the manor message land tenement and  hereditament whereof the testator sir William Lytton be at the time of make  his will seize in fee or whereof he then have a brown dispose power and the  reversion and inheritance thereof do well pass by the say will to the say  Lytton Lytton alias stride and his heir and therefore order the lady falkland  bill to stand dismiss from this decree lady Falkland appeal and on her behalf  it be argue t powys t Parker that sir William Lytton at the time of make his  will and also at the time of his death have subsist estate in the land  comprise in the settlement of by virtue of the limitation in such settlement  and that the land therein contain and the reversion thereof be then in  construction of law under the influence of and affect by those limitation and  consequent that be in a legal sense in settlement and as to the great part of  the land thereby settle in case he leave issue male he have no power to  dispose thereof to the prejudice of such issue male the fee be by the  settlement of lodge in trustee for the benefit of the right heir of sir Roland  from who those land move and if sir William have make no will the three coheir  of sir Roland of who the appellant be one will undoubted have enjoy the  benefit of that trust this manifest that these estate stand affect by both the  settlement at the time of sir William death for if there have be no such  settlement and sir William have claim only by descent from sir Roland Lytton  Lytton and lady Russell as coheir of sir William will have be entitle to the  whole and therefore it be insist that the say land ought to have be expound to  be in settlement and consequent to be exempt from the operation of the general  devise in the will of all the manor land etcetera out of settlement which word  be restrictive and seem to have be insert on purpose to prevent that  construction of the will which the decree have make that by such a  construction the word out of settlement though thrice repeat in the will be  reject and render total useless to the disherison of the appellant who be one  of sir Roland coheir whereas it be a establish rule both in law and equity  that no word in a will which can have a reasonable intent shall be reject and  these word out of settlement be capable of bear this and no other reasonable  intendment videlicet to prevent the land comprise in the settlement from pass  to the respondent Lytton and therefore as a heir at law ought not to be  disinherit by doubtful word this construction of the will ought in justice to  take place brown er p that it appear by the proof in the cause as well as by  sir William Lyttons will that none of the estate comprise in the settlement of  and ought or be intend by he to pass to the respondent Lytton and that the  testator never design to break into those family settlement for that he have  often declare that upon failure of his issue the appellant will come in for a  share of these estate as one of his father coheir and that he intend to leave  his personal estate between lady Russell and the respondent Lytton and that  Lytton will brown not only take one three part of his real estate as heir to  his grandmother but will also be enable to buy in the other two three from the  appellant and lady Russell it may be object that as the testator appoint the  respondent Lytton to take upon he the surname of the Lytton family so he  intend to give he the family estate to support it but to this it be answer  that there pass by the will to the respondent not only a moiety of the  personal estate which be in value upward of pound but also land of about pound  per and which be not comprise in the settlement of and beside one three of the  land in those settlement which he be entitle to as one of the coheir of sir  Roland Lytton and that this be a ample recompense for change his name and full  sufficient to support the character of his family nor can the consideration of  his name weigh much with the testator because he have give the estate to the  respondent Lytton in fee so that if he have only a daughter the name will have  sink and if the respondent have not take that name upon he the estate be give  over to lady Russell without any condition impose on her of take the name of  Lytton it may also be object that sir William Lyttons devise to the respondent  Lytton of all other his land out of settlement be immediate subjoin to the  devise of land in Letchworth to the testator wife which be comprise in the  settlement of and it be manifest the testator intention to give all other the  land in those settlement because he have just before take upon he to dispose  of part of the land so settle to his wife but to this it be answer that at  most the testator intend bare to break into the family settlement in order to  make a provision for his wife for her life and that only as to a small part of  the estate and for a short continuance and that therefore the subsequent  clause rather show his intention of break no far into the limitation of the  settlement and that to prevent it he insert these restrictive word out of  settlement to qualify the general word of all other his land beside it be  observable that he make use of the word land on that occasion whereas when he  aim to charge the whole estate with certain annuity he use the word manor and  which word will most probable have be insert in the general devise if he have  intend his manor to have pass shall it be further object that the portion of  pound for a daughter which be charge on the estate devise to the respondent  Lytton be a evidence of the testator intention that Lytton shall have his  whole estate for that otherwise such daughter will not only have the land in  the settlement of and but also pound out of the other part of the estate it  may be answer that it be much more reasonable in the testator to leave the  ancient family estate to come to such daughter under the settlement and to  give her pound out of the rest of the estate devise to the respondent Lytton  than to give his own child only pound and to give Lytton who brown be but a  remote relation pound per and beside a moiety of the personal estate which be  worth above pound it may likewise be object that the trust in the settlement  of for the right heir of sir Roland Lytton be a hereditament out of settlement  and so pass by the will but this objection be ill find because the land be at  the time of sir William death under the influence of and affect by the last  limitation in both the settlement of and and therefore if sir William have  make no will this limitation will have carry the land comprise in it to the  right heir of sir Roland and not of sir William and by consequence one three  to the appellant lady Falkland the defendant lady Russell also appeal from the  decree on who behalf it be contend S Harcourt S Cowper that these land can not  pass under the testator will by a devise of his land out of settlement because  they be in fact in settlement at the time of make his will he have particular  estate then vest in he in all those land under the settlement of so that it be  not in his power to dispose of they in prejudice of his issue and though upon  his death those particular estate brown er p determine yet that be not  material because accord to the establish rule of law a devise of land refer to  the time of make it and therefore it be to be regard how these estate stand at  the time of the testator make his will and not how they stand at the time of  his death accord it be observable that at both these period the legal estate  of the reversion in fee of all the land by virtue of the settlement of be vest  and still continue in trustee and consequent they be affect by that settlement  and the estate which pass thereby be still a subsist estate and therefore can  not be say to be out of settlement that it be clear the testator mean  something by the word out of settlement and if any thing they must be take in  a restrictive sense to prevent the land comprise in these settlement from pass  by the will and if the word will bear this sense the know rule of law must  take place which in case of a devise will suffer no word to be reject if they  can have any reasonable construction especial such word as the testator  himself seem to have lie a peculiar stress upon by repeat they no less than  three time with great care and anxiety but if these word out of settlement do  not clear show the testator intention to exclude these land out of the devise  yet they render the will doubtful whether they be mean to be exclude or not  and if so another know rule will take place that a heir shall not be  disinherit by doubtful word and this rule ought the rather to hold in the  present case because whatever part of the testator real estate the respondent  Lytton do not take by the will he be admit to take a equal share of as one of  the coheir and that as all the land now in question be at the time of the will  in settlement so the testator have new purchase land and other land out of  settlement and since the word of the will brown plain import a distinction of  one part of his estate from the other that which he will devise from that  which he will not and as he have estate to answer that distinction the  argument in favour of the present appellant be thereby great strengthen and  consequent the decree by give the respondent Lytton as well the land in the  settlement of and as the unsettle land seem to go against the plain and direct  word of the testator will but on behalf of Mr Lytton the respondent in both  appeal it be insist e Northey I Pratt that as sir William Lytton have no issue  male the inheritance of the whole estate be at the time of make his will in  his power to dispose of by deed or will as he shall think proper and therefore  out of settlement and that it plain appear to be the intent of his will that  all the estate which he have power to devise or dispose of shall pass thereby  in order to preserve they in his name and blood accord the respondent be his  old sister grandson be by the will oblige to take upon he the name of Lytton  and it can not be imagine that when the testator be lie a design to preserve  the estate in his own name he intend that all the ancient estate of the family  shall go to his female heir at law and not of his name when he have the same  power to dispose of that as of any other part of his estate that by his will  he have actual give part of this estate to his wife to who he before have make  a jointure of other part of it so that he can not be say to be very  superstitious not to dispose of any part of the estate which he have from his  ancestor that by his will the testator have make a provision for a daughter if  he shall have one which it can scarce be think he will have do have he intend  all the ancient estate of the family to go to such daughter and while he be at  the same time endeavour to preserve his name to give the person who be to take  that name so small a share of his ancient estate and to leave that too with a  charge of pound upon it and accord after hear counsel on both these appeal it  be order and adjudge that the same shall be dismiss and that the decree  therein respective complain of shall be affirm jour vol p brown er p