case Elizabeth vuhitchurch all versus joseph vuhitchurch all Reg lib b fol at  the roll pale yellow Rep stram Mod Eq can ab pl a possess of a term of year in  Blackacre afterward purchase the feesimple in b s name and devise Blackacre to  I S in fee but the will be not attest by three witness the term shall not pass  because attendant on and part of the inheritance Edward Whitchurch take a  mortgage of batcomb lodge from one bisse for year to commence from the make  for secure the sum of two hundred pound and interest and afterward take  another security of the same land from bisse the mortgagor for one thousand  year in the name of another person but in trust for himself to commence also  from the make peer William er p after this Edward Whitchurch purchase the  inheritance of the premise in his own name and have no wife or issue male make  his will all of his own hand write whereby he peer William devise the premise  to his nephew be the son of his young brother Joseph Whitchurch for his life  remainder to his son Edward Whitchurch and to the heir male of his body for  ever and make his brother Joseph Whitchurch his executor and residuary legatee  it happen that this will though intend to be perfect as a will by reason of  the testator sudden death have neither a date or name subscribe thereto  neither be it attest but the executor prove the same in the spiritual court  and assent to the devise to the nephew whereupon the elder brother daughter  who be heir to the testator bring this bill in order to compel the executor  and the devisee to assign over the term to her object for the defendant that  the executor have assent to the devise and the will though not attest by three  witness be however good at law to pass this term of year which be a subsist  term and not merge in the inheritance by reason of the intermediate term and  which intermediate term operate as a grant of the reversion and not as a grant  of a future interest for it be admit that a future interest will not prevent a  merger but this grant of year be to commence from the make do pass the  reversion for year quod to be concession per cur then if this will pass the  term at law and be agreeable to the intention of the party it be say to be  very bare that equity shall interpose in disappointment of the will especial  when it be in favour of so near a relation as a nephew of the testator and one  of his own name and all this for the sake of peer William one not more near  relate of one who on her marriage will probable part with her name that in all  case betwixt volunteer as the heir and devisee be here he that have the law on  his side use to prevail but decree by master of the roll that as this be a  term which will have attend the inheritance and in equity have go to the heir  and not to the executor in which respect it be to be consider as part of the  inheritance so the will which be not attest by three witness as the law  require it to be when land be to pass shall not carry this term that though it  be true such a will as in the present case will be sufficient to pass a term  in gross yet shall it not pass a trust of a term attendant on a inheritance  nor consequent the term itself that a will not attest as the statute of fraud  require shall not pass any estate of which the heir as heir will otherwise  have have the benefit that if the devisee of the land have bring a bill  against the executor and heir to have compel the executor to consent to this  devise a court of equity will not have decree it for the devisee and if so the  voluntary act of the executor consent will not alter the case for at that rate  it will be in the power of the executor to make it a good or a void devise  just as he shall think proper so a term to attend the inheritance can be claim  in equity by he who have lose the right to the inheritance by fine c Reynolds  v Jones S S beside the court observe that it be the intention of the testator  in the present case not to pass the term only but also to convey the  inheritance which be express dispose of by the will to the nephew for life  remainder to his first c son in tail peer William though as to this it be say  to be extreme hard that because quite so much as be intend can not pass  therefore the devisee shall be deprive of that which may lawful pass and which  be a less estate than be intend he or because all can not pass therefore  nothing shall however for the abovesaid reason the court decree the devisee  and executor to join in assign the term to the plaintiff the testator heir at  law but no cost on either side this decree be afterward affirm on a appeal by  the lord commissioner Gilbert and Raymond say vide the distinction take by  Lord commissioner Raymond in deliver his opinion on this case Mod vide etian  villiers v villiers atk Willoughby v Willoughby t r and Amb Goodright v sale  will Scott v Fenhoulet bro c c hark   Litt part of note to b Brett v sawbridge  Sugden vendor that edit Capel v girdler Ves peer William er p peer William de  term S michaelis