atkins case the earl of Coventry versus Coventry July SC Ves SC Ves the  question in this case arise upon the will of Thomas Lord Coventry make in  whether the testator by any word have dispose of a manor call Twigmore to the  plaintiff for if he have not the defendant insist he be entitle to it as heir  at law Thomas late earl of Coventry be in his lifetime seize in fee of the  manor of Twigmore in the county of Lincoln do by his will devise his freehold  manor of great and little Milton in the county of Oxford to his wife Elizabeth  for her life remainder to trustee and their heir to the use of his first and  other son in tail male remainder to his son Thomas Lord Deerhurst for life and  to the use of his first and other son in tail male remainder to testator son  Gilbert for life and to his issue male remainder to testator uncle Francis  Coventry for life and his issue male remainder to William Coventry and his  issue male remainder to Thomas Coventry for life and his issue male remainder  to Henry Coventry and his issue male remainder to testator right heir and he  thereby will that the manor or lordship of Twigmore shall be exchange for the  inheritance of the prebend manor of Milton in Oxfordshire which he hold by  lease and that the same shall be do by act of parliament and that the  inheritance of the say prebend manor after his death may be keep in his name  and family he give to Thomas Lord Deerhurst and Gilbert Coventry and two other  and to their heir the manor of Twigmore aforesaid and also the manor of Milton  to hold the say manor of Twigmore to they their heir and assign for ever to  the use in this his will and to hold the prebend manor of Milton unto the same  trustee their executor c for and during atkins er p the term of year he have  therein and all his tenant right of in and to the same to the end such  exchange may be make by act of parliament as aforesaid as soon as may be after  his decease it be his will to be a benefactor to the church of Lincoln  neverthe less it be his will that the trustee shall permit his say wife  Elizabeth to enjoy the manor of Twigmore and prebend manor of Milton and to  receive the rend to her own use until such exchange can be make and do also  direct that as soon as such exchange can be perfect that the say prebend manor  of Milton shall be settle upon his wife for life and after to his issue male  on the body of the say wife in special tail with remainder to the same person  to who he have limit great and little Milton Thomas die soon after he make his  will without issue male of his body by Elizabeth his then wife and leave issue  by a former venture two son Lord Deerhurst and Gilbert both since dead atkins  without issue and Thomas Coventry be also dead without issue male Elizabeth  countess of Coventry die in upon who death the manor of great and little  Milton vest in the plaintiff for life with remainder as before mention Gilbert  Coventry survive the other three trustee and leave a daughter only who marry  sir William Carew and by he have the defendant Coventry Carew who be heir at  law both of Gilbert the survive trustee and likewise of Thomas the testator if  no exchange can be make the plaintiff insist the manor of Twigmore ought to be  settle upon he for life with remainder as of great or little Milton be the  intention of the testator if exchange can not have be make and that defendant  ought to convey the manor of Twigmore to some new trustee till a act of  parliament can be obtain the defendant sir William Carew for himself and as  guardian for his son say that lady Ann Carew his wife daughter of Gilbert  Coventry die seize in fee of the say manor of Twigmore and leave Coventry  Carew her son and heir by this defendant he be entitle to hold and enjoy this  manor as tenant by the courtesy and that Coventry Carew his son be entitle to  the reversion in fee as heir at law of the testator and likewise of Gilbert  Coventry the attorney general for the plaintiff cite the case of noise versus  mordant vern and the attorney general versus fiennes February for the  defendant Mr Murray cite the case of Burqoyne versus Benson the that and that  of may before Lord Hardwicke and Bellasis versus Compton vern Lord chancellor  this come before the court upon a bill bring by the present Lord Coventry to  have the benefit of a estate by way of trust call Twigmore in Lincolnshire for  himself and for those who claim under the will of Thomas Lord Coventry by the  will it appear the testator intention be to secure estate in possession and  reversion not only to his lineal but the collateral branch of his family for  the introductoryclause of his will show plain his intention to settle his  whole estate see note to Ridout v pain post vol as to the effect of  introductory word in a will the testator be seize in fee of two manor one call  great Milton and the other little Milton and likewise of a leasehold estate  call the prebend manor of Milton under the church of Lincoln and of a freehold  manor call Twigmore near the city of Lincoln atkins he devise his manor of  great Milton c to his wife Elizabeth for her life remainder to trustee and  their heir to the use of his first and other son by Elizabeth in tail male c  videathe will then take up the consideration of the prebend manor of Milton  and manor of Twigmore Thomas the testator die soon after the countess his  second wife become entitle to both these manor till a exchange can be make and  during her life no exchange be ever make nor since her death and it be admit  the leasehold estate be at a end for it be never renew Gilbert Coventry second  son to the testator by the first venture be the survive trustee of these manor  he die without issue male and leave one daughter who be his heir and marry the  defendant sir William Carew so that the defendant Coventry Carew her son be  the heir at law of the survive trustee and of Thomas Lord Coventry the  testator the church of Lincoln refuse to make the exchange therefore the bill  be bring for the make the exchange and if the plaintiff be not entitle to that  he pray that he may at least have the manor of Twigmore against this latter  relief one general objection make in behalf of Coventry Carew atkins er p that  he be the heir at law of the testator and the plaintiff who claim under the  will stand in no other light before the court than as a volunteer and  therefore a court of equity ought not to interpose but where the law have  place the estate there it ought to remain but this objection will not hold  here for Coventry Carew must take as a devisee or not at all for the testator  do not leave any thing to descend but appoint trustee of all his real estate  and it be by mere accident it come to Coventry Carew as heir at law to the  survive trustee Gilbert Coventry and therefore shall make no more alteration  than if it have fall to the representative of any other trustee when there be  a limitation to a trustee though the legal estate vest in he yet it be  incumbent upon this court to declare who shall have the beneficial interest or  otherwise trustee will have the estate themselves the first question what be  the intention of the testator and the construction of the will atkins it  appear to I his intention be that a new purchase shall be make of the prebend  manor of Milton for particular use videlicet a provision for his young child  and afterward that the inheritance shall go over in remainder to Thomas Lord  Deerhufirst c in order to keep the prebend manor of Mitton in his name and  family this be his original and primary view a secondary view be to benefit  the church of Lincoln by give they a estate near Lincoln and a estate of  inheritance in possession in lieu of the prebend manor of Milton provide a act  of parliament can be procure the second question be what will have be the  effect of the exchange have it be complete Q as to this I be of opinion the  plaintiff and those who claim under he will not have take by devise but by  virtueof the exchange from the prebend manor of Mitton suppose the exchange  have be defeat by a eviction of the prebend manor the person who have lose the  manor of Mitton must have Twigmore back again and not the heir at law and the  trustee will certain have be trustee for the beneficiary and trust of the  prebend manor of Milton it be not clear in the law of exchange if there be a  alienation by one of the party and there be a eviction whether the heir at law  or the alienee shall enter vide bustard case   a b therefore this estate must  be take to be subject to the same trust as the estate in exchange will have be  the three question be what be the equity that result now the exchange be not  make or perhaps never will which the testator seem not to have have in his  contemplation the equity be very plain where a sum of money be give by the  will of a testator to be lie out in the purchase of land or of land in a  particular county and after they be buy to be settle upon such and such person  if a bill be bring here the constant ordinary course be to direct a purchase  and the produce of the money to go as the land itself till purchase this come  very near the present case I will put these case suppose there be a direction  by a will to purchase a atkins particular estate which be swallow up by a  inundation as happen in Essex or suppose the will be to purchase a estate in  such a country and it can be procure what be the consequence shall the money  so devise to be lie out go to the executor Q No sure but it shall go in such a  manner as the rend and profit will do when the land be purchase now I do not  see any difference between direct a estate to be give in exchange and direct  his manor of Twigmore to be sell and turn into money and apply for that  purpose Twigmore be devise to trustee for the use c videathe will now the  court must make such construction as will in the first place effectuate the  purchase another objection have be make that the profit from and after the  death till the exchange shall be make be a interest undisposed of vide hill v  bishop of London ante vol and be compare to Lord weymouth case but I think it  be not at all like that case for there the profit be total undisposed of here  the whole fee be give to trustee to the use of particular person and for  particular purpose it be carry too far when it be say no exchange can ever be  make for there be no time fix for it and therefore there may come a prebendary  at Lincoln who may consent to the exchange atkins er p another objection be  make that suppose the leasehold estate in the prebend manor have be keep full  and to this time the plaintiff can not have take both the estate this  objection seem very specious at first but will not weigh in the present case  for I own I be not satisfy whether the plaintiff will not have be entitle to  both next as to the case what I ground myself upon be consider this in the  light of a purchase which distinguish it from all the case and bring it to a  common equity the case of Burgoyn versus Benson rely on chief for the  defendant be attend with such variety of circumstance that it can never be a  precedent for this or any other upon the whole I be of opinion that the  plaintiff be entitle to the manor of Twigmore and must decree the possession  accord his lordship declare that the say manor of Twigmore be devise and  intend by the will of Thomas late earl of Coventry as and for the  consideration of the exchange or purchase by say will direct to be make of the  inheritance of say prebend manor of Milton and such exchange or purchase not  have take effect the say manor of Twigmore ought to go and be enjoy by such  person and to such use as the inheritance of the say prebend manor ought to  have go in case such exchange or purchase have be complete Reg lib a fol upon  the same principle seem the follow determination a real estate be devise and  after the testator death the devisee be evict damage be recover by virtue of a  covenant in the original purchase deed the devisee and not the heir shall have  the damage in lieu of the estate devise mkenzie v Robinson cite Ves vide  Sedgwick v Hargrave Ves Whittaker v Whittaker bro Charles can