case scott against scott in chancery that Nov devise to his son and his heir  but in case he shall die without issue not have attain twentyone then over he  attain twentyone hold he take by purchase and not by descent lib Reg Min mich  S c Eden V allam v Heber Trin t in king bench Str smith v clarke Lutw salk  Scott devise to Henry his old son and only son by a former wife and to his  heir and assign all other his real estate not before devise nevertheless in  case he shall die without issue not have attain twentyone then from and  immediate ambler er p after his death under age and without issue unto the  testator son William and the heir male of his body with remainder over the old  son attain twentyone the specialty creditor not have a lie on the real estate  have exhaust the personal estate in satisfaction of their demand the legatee  contend to stand in their place and come upon the real estate Q whether the  old son take by devise or descent in the latter case the legatee will be  entitle in the former not see ante Henley Lord keeper after have take time to  this day give his opinion that the old son take by devise as have under the  will a different estate than will have descend to he the one be pure and  absolute the other not the fact of this case as give by Mr Eden from the  registrar book appear to have be that Mr Scott by marriage article covenant to  settle land of the value of pound ayear on himself or life remainder to his  wife for life remainder to his son in tail male by his will after recite that  he have make no settlement accord to the article he devise certain premise to  his wife for life remainder to his son successive in tail male remainder to  his daughter as tenant in common he desire his executor to purchase other land  to make up together with these premise the value of pound per annum after give  several specific legacy to his wife and pound to his second son and pound to  each of his daughter he devise all other his real estate to his old son the  defendant Henry Scott as be mention in the text the yearly value of the estate  devise to his wife for life be only pound ayear the bill be bring by the widow  against Henry Scott and against the young child and the executor for a account  of the personal estate a specific performance of the marriage article and that  the right of the child may be settle it be contend on the part of the child  that the son take by descent and that they have a right to stand against he in  the place of the specialty creditor and the case of Hopkins v Hopkins for pell  v brown cro James hind v lion roll Abr die b Leon hamley v fisher Nov be cite  it appear from the note of the judgement in this case from Mr justice ashton  ms give by Mr Eden that the Lord keeper say as to the present case I be clear  that it be a specific devise to Henry for that he take a different estate for  what he will have have by descent decree refer it to the master to see whether  the Rothwells estate be a proper purchase as far as it extend in satisfaction  of the article a account of the personal estate and that if he shall be of  opinion that it be a proper purchase let a sufficient part of it be apply to  the purchase pro tanto if it be not sufficient and in case the personal estate  be not sufficient to pay the testator other debt and make good the article  likewise then any of the simple contract creditor be to be at liberty to  resort to the real estate so devise to the old son for so much as shall be  exhaust by the plaintiff out of the personal estate for make good the say  article the follow note by Mr sergeant hill on this case take from a ms note  by he in his copy of ambler in the possession of Mr sergeant Scriven the  determination in this case be right but the reason give for it be wrong that  the reason be wrong appear from cro Elizabeth above refer to cro Elizabeth and  many other case but though the devise of a feesimple to the testator heir be  void in all case notwithstanding the land be devise subject to a charge as  appear by the case refer to by ambler in the margin by p wms Lord raym burn  Ves S p admit hob and many other authority all contrary to gilpin case c c  which have sometime be cite be express overrule as in Com and so a devise to  the testator heir in fee subject to a contingency as in cro Elizabeth ub sup  and in the case here before Lord Northington be void for it amount to the same  as if there have be no devise to he but only a devise from he on a contingency  and therefore if the contingency on which the devise from he be to take effect  never happen the heir take by descent and not by purchase though a devise to  the testator heir if not restrain to a less estate the a feesimple be void as  to pass the estate yet the devise to the heir will in many instance influence  the construction of a will it be hold by Lord holt p nigh ms and accord  adjudge in the case there and so be the opinion of Lord Harcourt with respect  to the point on which the decision here rest for accord to the case in salk  though if land descend to a heir which from the context must be understand  when they be not mention ambler er p in the will to be devise to he if the  personal estate be exhaust in payment of the bind the legatee may stand in  their place and be pay out of the real estate yet Lord Cowper in that case  hold that since the testator have devise the land that they ought to be exempt  for it be as much the testator intention that the devisee shall have their  land as that the other shall have the legacy and a specific legacy be never  break into in order to make good a pecuniary one see Mr Eden valuable note on  this case vol and see chaplin v Leroux m S Fearn post work do v button Bos  pull Goodright v Searl will and see the late case of do v Timins b a where on  a devise to a heir in fee with a executory devise over in case he do not  attain twentyone it be hold that the heir take by descent and not by purchase