case the attorney general versus milner July at the roll as the legacy to e l  under the will of a S be to be pay out of a real be eat and he be dead before  the contingency happen on which he be to take this case be within the general  rule and ought to sink in favour of the heir at law prowse v Abingdon ante vol  van v clarke ante vol boycott v cotton ante vol whether smith by her will  among other legacy give to three trustee eight thousand pound upon trust that  they shall dispose thereof in the purchase of land of inheritance in feesimple  to be settle to the use of her grandson Thomas milner and the heir of his body  and for default of such issue direct the trustee to convey the same to the  draper company upon trust that they shall within three month after the estate  shall be convey to they by mortgage or sale of some part thereof raise and pay  to Edward Lynch her nephew two thousand pound which she bequeathe to he in  case of the death of her grandson without issue note these word in italic be  omit in the register book though it be evident that the chief point in the  case be determine upon this part of the will and that they shall dispose of so  much of the rend of such estate after payment of the two thousand pound as  atkins shall be necessary for purchase a convenient piece of ground for a  charity and till the purchase can be make the interest of the money be to go  as the profit of the land and by her codicil take notice she have give six  thousand pound to the charity she thereby give only five thousand pound Edward  Lynch die the that of April and one hill be administrator to he note there be  a former decree in this cause which declare as to the pound that it be to be  consider as a legacy of pound with respect to milner the grandson but in case  he shall die without issue and without alien it then as between the relator  and Edward Lynch it be to be consider as a legacy of pound after this decree  the suit abate by the death of Edward Lynch Thomas milner the grandson die in  may under the age of twentyone and without issue the question now be whether  this legacy of two thousand pound be lapse as Edward Lynch die before the  contingency happen or whether it be transmissible to his representative it be  insist on for the representative of Lynch that though the fund out of which  this legacy be Payable be to be consider as land and the legacy a charge upon  atkins er p it yet with regard to the legatee it must be look upon as a sum of  money upon the fall out of the contingency that it vest and be consequent  transmissible and for that purpose the follow case be cite eames versus  Hancock the that of February ante atk vol S c before Lord Hardwicke Pinbury  versus Elkin p wms king versus wither Trin term Cas in Lord Talbot time  Buckley versus Stanlake at the roll the that of December Ventr for the heir at  law and administrator of milner the grandson it be insist that the question  depend upon the nature of the devise itself and the rule of the court fall in  with the disposition that be make for this be a pecuniary legacy to be raise  and pay out of land and the constant rule be that if the legatee do not  survive the time of payment it can be raise for his representative this it be  say be undeniable the case with regard to portion and there be no difference  where the legacy be give to a child or a stranger in support of which be cite  hall versus terry November van and clarke July both before Lord Hardwicke for  the saint vide tram atkins and for the last vide tram atkins master of the  roll fortescue he state the word of the will and then say the only question  upon it be between the representative of Edward Lynch and the heir at law  whether this two thousand pound shall sink into the real estate or go to the  representative of Lynch the former decree do not determine this question but  declare the devise over to Lynch be not upon too remote a contingency but his  death happen in the lifetime of Thomas milner the grandson and before the  contingency fall out bring on the present point atkins it must be first  consider whether this two thousand pound ought to be look upon as give out of  a real estate the express devise be that eight thousand pound shall be lie out  in land and vest in trustee for the several use mention in the will the intent  of the testatrix be that it shall be settle as land and it be the constant  rule of the court that when money be direct to be lie out in land it shall be  consider as land vide Trelawney v booth ante vol Guidot v Guidot post and the  interest be direct to go as the profit of the land will till a purchase make  it be say though this shall be look upon as land with regard to the heir at  law yet as to the legatee it shall be consider as money but I think that can  be in this case because the testatrix direct it shall be raise by mortgage or  sale which show it must be out of land and the determination must be the same  with respect to the legatee as to the heir at law the heir at law will indeed  have the advantage of it as I be of opinion it must be consider as if to be  raise out of land the second question be whether this be such a legacy as  ought to go to the representative of Edward Lynch or sink in the real estate  for the benefit of the heir at law it be insist by Mr hill counsel that this  be a vest legacy in Lynch and that though he die before Thomas milner it ought  to go to his representative the word of the will be that the draper company  shall raise by mortgage or sale if Thomas milner die without issue c the  constant rule of construction be that if a legacy be give to the legatee to be  pay at a distant time as it depend upon the payment and not the legacy it  shall vest but if the devise be not annex to the time but the legacy in that  case if he die before that time be come it be a lapse legacy vide Lowther v  give ante vol Sherman v Collins post as to this it be plain not give till  after the death of Thomas milner without issue because the estate be give to  the draper company upon his death without issue so that the time seem to be  annex to the legacy and not give in general to be pay upon that contingency  and I be not clear whether that will be such a vest legacy as will go to the  representative atkins but I shall consider it as if it be a legacy give to he  but to be pay at a distant time in that light the question will be whether as  it be to be pay out of a real estate and not out of a personal estate the  representative can take Q the general rule be that if it be to be pay out of a  personal estate it will be a vest legacy and transmissible but as far as it be  to be pay out of land it will have another construction and will sink into the  land for the benefit of the heir at law atkins er p and the rule of the  ecclesiastical law be follow as to its be vest though to be pay at a future  day if it be Payable out of the personal estate in chandos versus Talbot p wms  hall versus terry ante atk vol S c upon a devise out of land the legacy be  decree to be void in van versus clark ante atk vol S c it be decree not to be  raise though give out of a mix fund Atkins versus hiccock ante atk vol S c be  indeed by way of portion and to be pay upon marriage and therefore not quite  so strong for the present purpose with regard to child portion the rule of the  court have be that where the child die before it become Payable it shall sink  into the land paulet versus paulet vern SC vent Yates versus Fettyplace vern S  c be to that purpose and if the rule be that a legacy out of land give as a  portion to a child who die before the contingency happen shall go to the heir  and not to the representative of the child I think it be much strong where the  legacy be give to a stranger Payable out of land several case have be cite to  show that the court upon many occasion vary from this general rule king and  wither can tempt Talb S c be the case of the great authority and most rely on  but there be a clause in that will which show the pound additional portion be  to be pay in all event whenever the contingency shall happen and the land be  Chargeable with it whenever it become Payable and there Lord chancellor say it  be different from all the case cite with regard to child portion for in those  the atkins child die before it become Payable and before they want it here she  have both marry and be of age and his lordship do not controvert the general  rule where the death happen before the portion become Payable this be to go in  addition of the portion and may advance her in marriage as the husband may  look upon that contingency as part of her fortune therefore this be different  from the present case because Edward Lynch do not live till the time when it  be direct to be pay that be the case of a child portion Edward Lynch be quite  a stranger and the consideration of marriage be not a ingredient in the case  Pinbury and Elkin p W S c and the case in Ventris anon vent be legacy Payable  out of personal estate and not out of land and therefore Bulkley versus  Stanlake be a devise out of land a rectory for life and it be decree there the  legacy shall be pay but it differ from this because the wife by will devise  the same estate to new trustee to dispose of for the best price and to pay the  debt and legacy of her husband not pay before her death she have the sole  right to the rectory and she give it upon that particular trust it can have no  other construction but that and it must be pay to the representative of the  legatee as they be dead before her devise though subsequent to that of her  husband in eames versus Hancock ante atk vol S c there be a clause of entry  and it be decree not to be a lapse legacy but that it shall go to the  representative of Elizabeth but the give the power of entry be as much as give  a term of year till payment and be a chattel interest that shall go to the  executor the present case do not come within any of the case cite to  distinguish it out of the general rule and though it be such a legacy as may  be vest in Edward Lynch and such as will go to his representative if it be to  be pay out of personal estate yet as this be to be pay out of a real estate it  S within the general rule and ought to sink in favour of the heir at law h be  lordship do declare that else representative of Edward Lynch be not entitle to  the pound bequeathe to he by the will of the say testatrix and that the the  same ought to be consider as belong to Robert milner as heir at law and  administrator of Thomas milner the late infant decease Reg lib a fol be no  authority atkins er p