Barnardiston Lowther and give February how far a legacy which be charge upon  the real estate shall be say to be a vest one Thomas give make his will  wherein be these word imprimis I give and bequeathe unto my daughter Isabel  give and Diana give the sum of pound apiece to be raise and pay unto they and  each of they immediate after my death out of the rend issue and profit of my  land and tenement in old Newton Butterwick and Boythorpe in the county of York  or by sale or mortgage of the same or a competent part thereof together with  interest for the say respective sum after the rate of pound per cent per Ann  from the time of my decease until the several respective sum of pound shall be  duly pay to my say daughter or their respective executor administrator or  assign item I give and bequeathe unto each of my say daughter the sum of pound  to be raise and to be pay unto they several and respective immediate after the  decease of my wife out of the rend issue and profit of my manor land tenement  and hereditament in Willoughby in the say county of York or by sale or  mortgage of the same or competent part thereof together with interest for the  say several sum of pound after the rate aforesaid from the decease of my say  wife until the same sum shall be duly pay to my say daughter or their  respective executor administrator or assign and my further will be that in  case either of my say daughter shall depart this life before I then the  survivor of my say daughter her executor administrator and assign shall have  and receive all and every the sum and sum of money herein before by I devise  out of my say land to be raise in the Barnardiston manner herein before  appoint and in such case the part of the daughter so die shall not cease or  sink into the estate for the benefit of my heir but shall remain and be raise  for the benefit of my daughter last bequeathe all my chattel real and personal  and all my good movable and immovable and all my personal estate whatsoever  unto my say daughter and do make and constitute they executor of this my last  will and testament in witness c Isabel in which be after the testator death  Diana intermarry with sir William Lowther in Diana die in the year follow  whether the mother die the present bill be bring by sir William Lowther  against Thomas give and Isabel who have intermarry with pit in order to have  the sum of pound mention in the will raise out of the estate which be thereby  charge with it Lord chancellor say his opinion be that the pound ought to be  raise out of that estate he say it be very true that there be a establish and  fix distinction between legacy charge upon the personal estate and legacy  charge upon the real and though this will clear have be a vest legacy in case  it have be upon the real but though the case be not so clear as it will have  be if the legacy have be Chargeable upon the personal estate yet there be  sufficient ground to say that even in the present case the legacy shall be  vest one and the plaintiff entitle to it the word of the will be in this  manner I give and bequeathe to each of my Barnardiston er p two daughter the  sum of pound to be raise and to be pay unto they several and respective  immediate after the Barnardiston decease of my wife so that it be a gift  immediate to the daughter though not indeed to be raise till after the death  of the testator wife the time mention in the will be not annex to the  substance of the legacy but to the payment of it and consequent if this have  be a legacy Chargeable upon the personal estate it will have be clear a vest  one and the plaintiff entitle to it it must be admit indeed that the legacy in  question be not Chargeable upon the personal estate but Chargeable upon the  real for which reason it must be own that it be equal a establish rule that  where a legacy of that sort be give though the time mention in the will be  annex to the payment of it and not to the body and substance of the legacy yet  in general such legacy shall not be raise when the legatee die before the time  for payment of it and this be so more especial where a legacy of that sort be  give by way of portion but notwithstanding this be the general rule yet the  principal ingredient which have give rise to this doctrine have be that the  neglect the payment of the legacy have appear to have arise from circumstance  on the part of the legatee as attain the age of twentyone or marriage or the  like there if the legatee die before the time of payment of the legacy this  court which favour the real estate have consider it that there be no occasion  that it shall be raise the party die who be in the immediate contemplation of  the testator but where the neglect the time of payment of a legacy have be owe  to the circumstance of the estate of the testator and not to the circumstance  of the legatee that be not so strong a case to favour the Legacys sink into  the estate as the other be though his lordship say he do not know but that the  case may have go so far as even there in some instance to allow of a sink but  this have be determine Barnardiston that where a legacy charge upon land  depend upon two contingency and one of they do not happen but the other do the  legacy shall be raise that be the case of king and wither Prec in Chan however  in the present case it be clear upon the pen of the will that the intention of  the testator be that the legacy in question shall be raise in favour of the  plaintiff here pound be give to each of the daughter with interest to be  compute from the death of the testator wife No argument indeed can be draw  from the circumstance relate to interest for it be natural to give a direction  about that in that manner but then the will go on and direct that this legacy  shall be pay to the daughter their respective executor administrator and  assign and something may be infer from thence in favour of the plaintiff it  have be indeed say that the use of this clause may be only to show the  testator intention that if the daughter survive the mother and afterward die  the legacy shall be pay to their representative but if that be the meaning of  the testator the insert this clause be very unnecessary for if the daughter  survive the mother there can be no doubt but that the representative of they  will be entitle to the legacy of course the use of this clause seem rather to  be to show the testator intention that if the daughter die in the life of  their mother and after the testator death that the legacy shall be pay to  their representative but his lordship say that he do not rest his opinion upon  this clause in the will the clause that he find himself principal upon be that  which be in the word follow and my far will be that in case either of my say  daughter shall depart this life before I then the survivor of my say daughter  her executor administrator and assign shall have and receive all and every the  sum and sum of money herein before by I devise out of my say land to be raise  in the manner herein before appoint and in such case the part of the daughter  so die Barnardiston shall not cease or sink into the estate for the benefit of  my heir but shall remain and be raise for the benefit of my daughter it have  be say that the contingency upon which this clause of the will be to take  effect have not happen but it be plain that the testator have in his view a  certain case wherein the legacy shall not sink into the estate that case be  the event of either of the daughter die in the life of the testator and if  even in that case the testator design that legacy shall not sink into the  estate much strong reason be there to infer that they do not design this when  the daughter survive he this clause be a plain indication of the testator  design that the daughter shall have this legacy at all event and that it shall  not depend upon the accident of their die in the life of their mother it have  be say that if Barnardiston er p the testator have be ask at the time of make  his will whether on such a event as have happen he will have the pound legacy  raise for the plaintiff he certain will have answer that he will not but this  manner of argue by ask a question of this sort be a very uncertain one those  that ask the question answer it themselves and they give such a answer as  serve for their purpose but if this question have in reality be ask the  testator his lordship say he shall have think it much more probable that under  the circumstance of the present case the testator will have answer that his  meaning be that the plaintiff shall have this legacy the plaintiff marry this  lady in she do not die till and it will be a reasonable thing in it self that  under such circumstance the testator shall intend that the plaintiff shall  have this legacy as to mrs Pitt his lordship opinion be that there be no  foundation that she shall be entitle to this legacy her sister not have die in  the testator lifetime and so his lordship be please to decree accord N B on  the that of June follow this Cause be reheard but the decree be affirm