brown case Nathaniel Wilkins brett appellant jacob sawbridge and other  respondent that march that march Mews dig xv the mortgagee for a term of year  be in possession devise the premise as a estate of inheritance to three  several person for life successive with remainder to their first and other son  remainder over the remainder over be void as tend to a perpetuity ground and  rudiment of law and equity p can John wrath Esq afterward sir John wrath Bart  be seize in fee of a message call Blendon hall and of other message and land  in the county of ken by indenture date the that of February demise the same to  Francis hill for year and the say Francis hill on the that of December execute  a defeazance wherein recite the say demise he declare that the same be make  for secure pound and interest at pound per cent and that on payment thereof  and of pound more than borrow and interest for the same make together pound  the demise shall be void and by another indenture date the that of December in  consideration of pound pay to the say Francis hill by sir John Baber and of  pound to sir John wrath the say Francis hill and sir John wrath assign the  premise to sir John Baber for the remainder of the year redeemable on payment  by sir John wrath of pound by indenture date the d of December sir John wrath  confirm the premise to sir John Baber for the remainder of the say term  redeemable on payment of pound thereby acknowledge to be due sir John wrath  die in whereby the reversion of the premise subject to the say mortgage  descend to sir John wrath his son and heir by indenture date the that of  January sir John Baber in consideration of pound pay by Edward Brewster assign  the premise for the residue of the say term to Brewster who take possession of  the same and afterward the say Edward Brewster by indenture date the that of  October for the consideration therein mention assign the premise to Richard  Watson his executor and administrator and Brewster thereby covenant that sir  John Baber and one Ralph martial and Brewster himself and all person claim  under sir John wrath will do any act within seven year for further assure the  premise to the say Richard Watson his executor and administrator for the  residue of the say year and it be thereby declare that the say assignment to  Watson be make in trust for sir Edward Brett to the intent to wait upon the  inheritance of the premise intend to be convey to the say sir Edward Brett and  his heir after this transaction sir Edward Brett make his will date the d of  December and therein recite as follow videlicet whereas by deed indent I do  purchase of Edward Brewster brown decease all that the capital message call  Blendon hall etcetera which be heretofore the land and inheritance or repute  to be the land and inheritance of sir John wrath decease and late purchase by  I for the residue of the term of year then to come and unexpired in which deed  there be a covenant from the say Brewster that sir John wrath and brown er p  his heir in who the fee of the premise be vest shall convey the same to I and  my heir but the say sir John wrath die before such deed be execute and leave  issue a infant not above the age of eight year it be at present impossible to  have the fee convey to I wherefore I do hereby declare and it be my will and  desire that a conveyance be execute by the heir of sir John wrath when they  shall attain to their full age accord to the settlement in tail hereafter  mention the testator then devise the say premise to John fisher old son of  Henry fisher and Elizabeth his wife for the term of his natural life remainder  to trustee to preserve contingent remainder and after the death of the say  John fisher to the first son of the body of the say John fisher and the heir  male of the body of such first son remainder to the second three four five six  seven eight and every other son of the say John fisher successive in tail male  remainder to Nathaniel fisher second son of the say Henry fisher for life with  remainder to trustee to preserve contingent remainder and then to the first  and other son of the say Nathaniel in tail male remainder to Edward fisher  three son of the say Henry fisher and his son in like manner remainder to all  and every other the son and son successive of the say Henry fisher and  Elizabeth his wife and the heir male of the body of every such son and son  accord to their seniority and for default of such issue to the right heir of  Stephen Beckingham Esq and Richard Watson gentleman their heir and assign and  the say testator direct that the remainder of the say term shall remain and be  attendant on the inheritance of the premise accord to the limitation aforesaid  and as for all other his real and personal estate he devise the same to the  say John fisher Nathaniel fisher and Edward fisher the elder of they to have a  double share and the rest between the other two and make the say Stephen  Beckingham and Richard Watson executor of his will and the testator also  direct that every person to who the premise be limit by the devise aforesaid  shall take upon he and use the surname of Brett in the testator die and the  say John fisher take upon he the name of Brett and enter on the premise and  afterward the say Henry fisher and Elizabeth his wife die leave issue only  three son the say John Brett fisher Nathaniel fisher and Edward fisher  Nathaniel fisher the second son die without issue have make his will and  appoint his brother Edward executor thereof who prove the same and afterward  die without issue have also make his will and appoint brown the say John Brett  fisher executor thereof who duly prove the same on the that of march the  appellant Nathaniel Wilkins Brett as heir of Richard Watson one of the  executor of sir Edward brett will exhibit his bill in the court of chancery  against the say John Brett fisher and Edward fisher and against some of the  tenant of the premise pray that the say John Brett fisher and Edward his  brother may be enjoin from cut down timber on the premise or commit any waste  thereon all the defendant have put in answer to this bill the cause come on to  be hear before Mr justice Tracy in the absence of the Lord chancellor Cowper  on the that of November when it be suggest that as it do not appear that the  inheritance of the premise be actual convey by sir John wrath or his heir  there be a possibility that the heir of sir John may set up some claim to the  premise whereby the appellant title to the feesimple in remainder may be  render precarious it be order that upon the appellant give security to  indemnify the defendant John Brett fisher against the heir of sir John wrath  it shall be refer to a master to see what timber have be fall and the value of  it since sir Edward brett death whereof the defendant John Brett fisher be  order to pay one moiety to the plaintiff but as to the other moiety no  direction be give and the injunction which have be grant be continue and the  deed and write be to be bring into court for the benefit of both party  afterward on the application of the then defendant the cause be reheard by  Lord Cowper on the that of may who be please to order that the appellant shall  be at liberty to amend his bill and make the heir of sir John wrath a party  and the injunction be continue until further order the bill be accord amend  and sir Thomas wrath the heir at law make brown er p a party thereto who on  the that of march put in his answer and thereby say he believe that sir John  wrath his grandfather or sir John his father do not sell or otherwise convey  the premise to Brewster and hope if any right of redemption of the mortgage  remain in he it shall be preserve to he both as to the premise and the timber  fall after this answer be put in the appellant do not think fit to proceed any  further in his cause till after the death of the say John Brett fisher who die  without issue on the that of November in easter term the appellant exhibit a  bill of revivor and supplement against the respondent and Stephen Beckingham  sen as the survive executor of sir Edward brett will and Stephen Beckingham  jun his son and also against Thomas Troyte and dame Cecilia his wife and  Thomas palmer and Elizabeth his wife the say Cecilia and Elizabeth be the heir  at law of brown sir Thomas wrath thereby pray to be let into possession of the  premise and that such of the defendant in who the year term be vest may assign  the same to the appellant and that such of they in who the legal estate in the  inheritance be vest may convey the inheritance to the appellant and that the  former decree may be revive and the appellant have the benefit thereof to this  bill the respondent Jacob sawbridge put in his answer and thereby set forth  the original mortgage from sir John wrath the grandfather to Francis hill and  the several assignment thereof before mention and also sir Edward brett will  and after take notice of the death of the say Nathaniel and Edward fisher and  of their respective will and that they die without issue he state that John  Brett fisher be indebt to the defendant William Newland in pound by deed poll  date the d of October assign the premise to the say Newland for the remainder  of the say term of year subject to a proviso for make void the same on payment  of pound and interest by the say John Brett fisher and that by a endorsement  on the say deed poll date the that of February the say Newland in  consideration of pound assign the premise to Elizabeth Brainbrigg subject to  the proviso of redemption contain in the say deed poll That afterward the say  William Newland come to a agreement with the say Thomas Troyte and Cecilia his  wife and Thomas palmer and Elizabeth his wife as the coheiress of the say sir  Thomas wrath for the purchase of the reversion and inheritance of the premise  for pound and thereupon the say Thomas Troyte and his wife and Thomas palmer  and his wife in consideration of pound to they pay by the say William Newland  levy a fine of the premise to George Thompson and his heir and by indenture  date the that of march between the say Thomas Troyte and Cecilia his wife and  Thomas palmer and Elizabeth his wife of the one part and the say George  Thompson of the other part the say fine be declare to be to the use of the say  George Thompson and his heir who nail be use in the say conveyance in trust  for the say William Newland That by indenture tripartite date the that of  August between the say Elizabeth Bainbrigg of the first part the say John  Brett fisher of the second part and John white of the three part in  consideration of pound pay to Elizabeth Bainbrigg and pound pay to the say  John Brett fisher the say Elizabeth Bainbrigg by his direction and also the  say John Brett fisher assign the premise to the say John white his executor  etcetera for the residue of the term of year subject to redemption on payment  by the say John Brett fisher of pound S to the say John white who name be use  therein in trust for the respondent Jacob Sawbridge And that afterward by  indenture of lease and release date the that and that of August in  consideration of pound therein mention to be pay by the respondent Jacob  sawbridge brown to the say George Thompson but which be real pay to the say  William Newland the say George Thompson by the direction of Newland convey the  say premise to the respondent Jacob sawbridge and his heir and the respondent  sawbridge further set forth by his say answer that the say John Brett fisher  die about the that of November and that before his death he make his will and  thereby devise the premise and all other his real and personal estate to the  respondent Jacob sawbridge his heir executor administrator and assign and  appoint he executor of his say will who duly prove the same and the respondent  insist that by virtue of the say will and the several deed before set forth he  be entitle brown er p not only to the remainder of the say term of year but  also to the inheritance of the premise comprise therein the respondent Peter  Delamotte put in his answer in the say bill and therein set forth that believe  the say Jacob sawbridge have a good title he take a lease from he of the say  capital message and some land part of the premise for the term of year at a  pepper corn rend for the first two year and at the rend of pound a year for  the remainder of the say term and that rely on a quiet enjoyment of the  premise in his lease he have lie out considerable sum in improve the same and  therefore insist on his right to hold the premise in his say lease for the  residue of the say term under the rend and covenant therein reserve and  contain this supplemental cause be at issue and witness examine come on to be  hear before sir Joseph Jekyll Knt master of the roll on the that of December  when his honour be of opinion that the appellant have make out no title to the  inheritance of the premise as heir at law of the say Richard Watson be about  to dismiss his bill but it be then insist by the appellant counsel that he  have a right to the premise for the residue of the say term of year under sir  Edward brett will but have make out no title thereto in his bill his honour be  please to order that the appellant shall pay the defendant the cost of the day  and be at liberty to amend his bill and make proper party and bring on his  cause again to a hear but he be to amend his bill by the first day of the next  term or in default thereof the same be to be dismiss accord the appellant  amend his bill by charge that in case the say sir Edward Brett have only a  term for year in the premise when he make his will the remainder thereof  subject to the estate for life thereby give to the say John Brett fisher  Nathaniel fisher and Edward fisher with contingent remainder to their first  and other son respective do vest in Catherine Wilkins otherwise Watson who be  the heir at law of the say Richard Watson at his death and that she die  intestate administration of her personal estate have be grant to the appellant  brown and that by virtue thereof he be become entitle to the residue of the  say term on the that of February the say cause come on again to be hear before  his honour the master of the roll who after he have full hear what be allege  by the counsel on either side take time to consider thereof and after mature  deliberation his honour on the that of may be please to declare his opinion  that the appellant have no title to the premise and therefore decree that the  appellant bill shall stand dismiss with cost as to the respondent Peter  Delamotte no cost be ask for the other defendant from this decree the  appellant appeal d rider n fazakerly and on his behalf it be say that there be  but two objection insist on by the respondent against his demand I that sir  Edward Brett have devise the premise as a estate of inheritance and not as a  term and have in fact only a term and no inheritance the term will not pass  and two that if be intend to devise the term the limitation to the right heir  of Stephen Beckingham and Richard Watson be too remote and therefore void To  the first of these objection it be answer that the respondent be not at  liberty to insist that the testator have not the legal or equitable estate of  inheritance in he for that the conveyance to John Brett fisher under who they  claim from the heir of sir John wrath ought to be understand to be in  pursuance of the intent of the testator and of that equitable right to which  he apprehend himself to be entitle but if he be not to be consider as entitle  to the inheritance it be conceive that there can be no reason to overturn his  will entire because it can not take effect in the full extent which he intend  and as to the other objection it be say that the intermediate limitation to  the son of John Brett fisher Nathaniel fisher and Edward fisher be all of they  contingent only and to happen within the compass of life then in be and as  these contingency never do happen and the limitation to the heir of Beckingham  and Watson be to take effect immediate on the failure of these contingency it  can not be too remote since there never be any person in be who have or be  entitle under the will to have any great estate than what be determinable on  life then in be and therefore it be hope that the decree will be reverse on  the other side it be argue I will I strange that as to the inheritance of the  premise which the appellant claim by his original and supplemental bill brown  er p though if he have any title it can only be to a moiety of the premise as  Stephen Beckingham the elder be still live there be no proof nor do it appear  by any of the deed set forth in the plead that sir Edward Brett or any person  in trust for he at the time of make his will either have or be entitle to any  great estate in the premise than only for the remainder of the mortgage term  of year neither be there any evidence that the heir of sir John wrath be under  brown any obligation to release the equity of redemption of the premise or to  convey the inheritance thereof to sir Edward Brett and his heir that though  Brewster in the assignment of January to Richard Watson in trust for sir  Edward Brett have covenant that all person claim under sir John wrath shall  within seven year do any further act for assure the premise to Watson for the  remainder of the term yet that covenant will not bind the heir of sir John  wrath nor can it extend to the inheritance but be only for better assure the  premise for the residue of the term and the testator be deceive by Brewster  who covenant for what be not in his power can not give sir Edward Brett a  title to the inheritance either in law or equity and therefore though sir  Edward take upon he to devise the inheritance yet he have no right to do so  nor can the inheritance pass by his will he have no legal or equitable estate  or interest therein and consequent the appellant can have no title thereto as  to the term of year it appear very plain by sir Edward brett will that he have  no intention to devise it as a term in gross he have express direct that the  remainder of the lease for year shall be attendant upon the inheritance of the  premise accord to the limitation in his will and those limitation be such as  be proper only for a estate of inheritance and not for a term of year and as  he do not intend to devise the term as a term in gross but only to devise the  inheritance which he have not so neither can he entail the term in such manner  as he have limit the premise by his will if he have be mind so to do because  such limitation of a term tend to create a perpetuity and the limitation to  the heir of Watson and Beckingham after failure of issue male of John Brett  fisher and his two brother be void in its creation and be such a executory  devise as can never take place by the rule of law that though in fact Henry  fisher leave no other son than John Brett fisher and his brother and that they  all die without issue yet that will make no alteration in the case for the  will must be construe as thing stand at the time of make it without regard to  any future event beside the testator intention be plain that the limitation  over be to take place upon failure of issue general be it when it will and not  upon failure of issue within such a reasonable time as the law allow of for he  entail the estate by proper and technical word under a apprehension of his  have a power over the inheritance and of limit a remainder after the estate  tail shall be determine and if the limitation to the heir of Watson and  Beckingham be not good when the will be make nothing which have happen since  can make it good after hear counsel on this appeal it be order and adjudge  that the same shall be dismiss and the decree therein complain of affirm journ  vol p