case robert loder plaintiff Seymour loder and mary his wife John loder and  jane his wife John jordan and whether his wife John meat and Elizabeth his  wife the daughter of Charles loder decease thomas whitley and ralph his son  the heir at law of John loder and mary loder relict and executrix of Francis  loder the son of Charles loder defendant at the roll John Loder make his will  inter all in these word I give and devise all my manor and rectory of Hinton c  to my son Charles Loder for ninetynine year if he shall so long live remainder  to trustee to preserve the contingent remainder remainder to the first and  every other son of the body of Charles in tail male remainder to my son  Francis for ninetynine year if he shall so long live remainder to trustee to  preserve the contingent remainder remainder to the first and every other son  of Francis in tail male remainder to my kinsman Robert Loder and his heir for  ever upon trust that the say Robert Loder his heir and assign shall pay to all  and every the daughter and daughter of my son Charles and Francis and also of  my son Thomas as a addition to their portion the sum of pound mosely report  equal to be divide between they in case there shall be more than one provide  also that it shall and may be lawful for my son Charles and Francis as they  several and respective come into possession to charge and make Chargeable by  lease mortgage or otherwise the say premise for the answer or pay such sum of  money to and for the portion of their respective young son and daughter and to  be pay at such time and time as they shall by any deed or will several direct  and appoint so as the sum to be appoint by Francis do not exceed pound and by  Charles pound and with answer such sum for their maintenance until their  portion shall become Payable as they the say Charles and Francis shall direct  and for want of such appointment then I will that the land shall stand  Chargeable with the payment of pound to the young child of Francis and of  pound to the young child of Charles with interest till they become Payable and  such portion be to be pay to the son at twentyone and to the daughter at  twentyone or marriage and if any die before their portion shall become Payable  then their portion shall go to the survivor and if all die they shall sink  into the estate and in the last clause of his will he devise to his son  Charles all the rest and residue of his real and personal estate whatsoever  undisposed of whether in low or equity to he his heir executor and  administrator for ever in trust for the payment of his debt and legacy and the  surplus if any to his own proper use and benefit John Loder die and his son  Francis Loder and Charles Loder be since dead without issue male and Charles  make no appointment for the portion of his young child and leave the four  defendant his daughter and heir at law and have two son live at the death of  John Loder Francis who be then the young and live to attain his age of  twentyone year but before his death which happen in the lifetime of his father  by the death of his brother become his old son intermarry with the defendant  mary who he make his executrix and Thomas Loder the son of the testator die  leave whether and Elizabeth his daughter who both die in the lifetime of  Charles Loder Elizabeth unmarried and whether marry to the defendant Thomas  Whitley who take out administration to her Robert Loder to who the estate  descend for want of issue male of Charles and Francis file a bill to have the  right mosely report of the several defendant settle that mosely report er p he  may pay the money charge on the estate with safety and to have the deed and  write deliver up to he and at the hear of the cause June the d there be three  question make the first be whether the defendant Thomas Whitley as  representative of his wife whether the daughter of Thomas Loder who die before  the estate come to the plaintiff be entitle to a share of the pound and the  master of the roll adjudge that she be not and that the pound be to be divide  only among the daughter who be alive at the time the remainder to the  plaintiff come into possession the second be whether mary the wife and  executrix of Francis Loder who be a young son of Charles Loder at the death of  the testator and attain his age of twentyone year though afterward he be a old  son and die in the lifetime of his father be entitle to a five part of the  pound and his honour decree that he be not because he be the old son before  any appointment be make and his father can not afterward have make a  appointment in his favour and the portion give by the will do not vest till  after the death of the father for he may make the appointment at any time  during his life vern the three question be whether the residue of the estate  after the trust for raise the portion be perform belong to the defendant Ralph  Whitley as heir at law of the testator and it be late the consideration of  this be defer till Thursday June the that when it appear that Charles Loder be  make residuary legatee of the real estate undisposed of it be adjudge that the  heir at law of the testator have no right and that the cause shall be adjourn  to this day when it shall be argue whether this be a beneficial devise to the  plaintiff or whether the residue of the trust shall belong to the defendant  the four daughter and heir of Charles Loder the residuary legatee Mr attorney  general for the plaintiff to determine this question it be necessary to  consider the whole will the testator be make a disposition of all his estate  among his son and daughter on the marriage of his son Thomas he have settle a  estate on he to his son John he devise a rentcharge and several legacy and  provide for his daughter and her heir and devise the land in question to his  son Charles and Francis in strict settlement and on failure of issue male of  their respective body to the plaintiff and his heir mosely report upon trust c  there can be no doubt but the whole legal estate be dispose of to he so the  only question be on the trust the defendant say that the devise be in trust to  pay pound be only a disposition of the trust pro tanto and that the residue of  it belong to the residuary legatee but as we be upon the disposition of a  trust we be to guide ourselves by the intention of the testator the devise be  to Charles for ninetynine year if he shall so long live remainder to his first  and every other son in tail male and the remainder to the plaintiff be to take  place only if Charles die without son in which case his daughter if he leave  any will be his heir and the pound be to be raise out of the estate for the  daughter of Charles Francis and Thomas but can we suppose that the testator  intend the remainder of the trust shall go to the daughter of Charles in who  favour he have make a particular charge on the estate and his intention of  kindness to the plaintiff appear from a devise of other land to he and his  heir absolute after the death of Francis and Charles Loder where land have be  devise in trust to raise portion out of the rend and profit or by a sale of  the estate the residue have often be decree a result trust but here the devise  be in trust to pay c and so come up to those case where land be devise to pay  such a sum which have always be adjudge to be a devise in fee because the  estate be give on condition the devisee pay such a sum of money out of his  pocket without any regard to the value of the estate and the testator take  notice of the plaintiff as his kinsman which be a material circumstance for in  the case of Hobart versus Com Suffolk vern Lord Cowper declare that the devise  can not be intend a bounty because Lord George be not his relation as it may  have be if the devise have be to Colchester only vern and the case of north  and Crompton Chan Cas be a strong authority for we Catherine Crompton make her  will in these word I ordain and constitute Henry north my executor and I give  all my estate real and personal to dispose of for the payment of all my just  debt and for the perform of all such legacy as I have herein or by the codicil  annex bequeathe unto my executor above name then she devise pound to the  defendant her uncle and heir at law the Lord keeper and four judge agree there  be no imply trust of the surplus of the real estate for the heir for mosely  report er p if the testatrix have intend he the surplus she will not have give  he pound and by that construction the devisee will have no benefit by the will  so here the testator have make particular provision for Charles Francis their  son and daughter that be a evidence he design they shall have no more mosely  report Mr lutwych a trust must be imply from the intention of the testator but  the whole frame of the will show that this be intend a beneficial devise to  the plaintiff the testator provide in the first place for his son and their  issuemale and then for their daughter and the estate be to go on and continue  in his own name subject only to the particular charge if the devise have be in  trust to sell that will have show the testator do not design to continue the  estate in his own name in the case of Wych and Packington the testator devise  a rentcharge of pound ayear out of all his lordship in the county of Pembroke  c for thirteen year to his wife who he make executrix nevertheless in trust  and confidence to enable her to pay his debt and legacy and he devise to her  all his say land for life as a augmentation of her jointure the baron of the  court of exchequer be divide and the chancellor of the exchequer be of opinion  that the trust of the rentcharge after the payment of debt and legacy result  to the heir at law and the decree be affirm in the house of lord this case  look more like a trust than we the wife have a provision make for her by the  will beside the rentcharge and it be not likely in our case that the testator  intend the plaintiff shall have nothing for his trouble Mr solicitor general  for the defendant the daughter and heir of Charles Loder the residuary legatee  it be proper to consider the intention of the testator as far as it be  agreeable to the rule of law it be very plain that this will be draw by a  person who understand the law he make use of legal word and of term proper to  conveyance through the whole will so the testator must be suppose to  understand the difference between a devise in equity and in law where the  devise be to vest in the party for his own use and where in trust only the  first devise to Charles be plain a beneficial devise the remainder to trustee  c be in trust only remainder to the first and every other son c be all  beneficial devise and the devise to the plaintiff be express in trust if land  be devise to a man and be heir in trust to pay a sum of money the devisee be  to be consider as a trustee unless he can show the testator intend the  contrary and therefore it be incumbent on the plaintiff to make it appear that  the testator design he shall not be a trustee of the surplus and all the case  of undisposed part of trust whether create by deed or will in fee or for year  be applicable to this case which have nothing new in it what a use be at law a  trust be now and if a estate at law be limit to trustee for particular use  only the remain mosely report use result to the feoff if a term be carve out  of the inheritance to raise portion as soon as they be raise though the legal  estate remain in the trustee court of equity always decree that the term shall  attend the inheritance for so much of the trust as the owner have not dispose  of remain in he so here so much of the trust as be not devise away shall fall  into the residuary devise Chan Cas and Wych and Packington be a case great in  our favour where part only of the trust be dispose of the residue be decree to  the heir though the term create out of the inheritance may be suppose to be  for the benefit of the wife who he have make executrix as well as to pay debt  and legacy the case of Hobart and the earl of Suffolk sergeant Maynard devise  to the countess of Suffolk the Lord George and the defendant Colchester and  their heir to the use of they and their heir all his several manor and land  upon trust to convey part after the death of his wife to Hobart for ninetynine  year if he shall so long live remainder as to part to his wife for life  remainder to the first son for life and other part to his daughter the  countess of Suffolk and her issue male for life with a cross remainder on  failure of issue male of either of they and the will say nothing as to the  remainder in fee the court decree what of the trust be not dispose of to the  heir but it be say that this devise be in trust to pay but the devise in that  case be in trust to convey but there be no difference whether the trust be to  raise a particular sum only or to limit particular estate only the word pay in  the case that have be cite be put in to denote the quantity of the estate not  whether it be in trust or not but that be not in dispute in this case for the  plaintiff have without doubt the legal estate in fee north and Crompton be  very distinguishable from this case by the first clause he be make executor  and the last devise to he be of the real and personal estate for the payment  of her debt mosely report er p and legacy by which it appear to be her  intention to make they a common fund and the whole be to be consider as asset  so this be the same as a devise of the personal estate to he for payment of  debt and legacy in which case he be entitle by law to the surplus and in  equity too if he be not exclude by the intention of the testator and there the  heir at law have a legacy of pound though that alone will not have be a  sufficient cause for the decree as appear by the case of Randal and booky vern  but the rule that the heir be to be exclude where he have something give he  will not hold in this case for though the daughter have a particular provision  they claim only as stand in the room of their father who be entitle by the  residuary devise which be a provision for himself and it be a chance that the  daughter be his heir but the residuary clause be a full explanation of his  intention he devise to Charles Loder all his estate real and personal either  mosely report in law or equity which remain undisposed of in trust for payment  of debt and legacy and the overplus for his own use he know that a estate  after a particular charge be pay off will result to the heir or sink into the  residuum therefore he give it in one case to raise particular sum only but in  this clause he express devise the surplus for his own use this be the  description of what he devise and the surplus of this trust be a estate  undisposed of master of the roll I think this be a devise to the plaintiff  Robert Loder his kinsman and his heir only in trust to pay the particular sum  charge on the estate and to decree otherwise will be to make a new will for  the testator and go contrary to a multitude of case and in point of  construction this case be to be consider as if there be no residuary devise  where a estate be convey on particular trust if the rest be to be take as a  gift to the party there will be a end of result trust and this case be the  strong against the plaintiff because the testator when he have dispose of part  of the estate by the residuary clause show that he know the overplus will  result to his heir who he design to disinherit and therefore he make a total  disposition of it and I do not think he design to make a complete disposition  of his estate till the last devise for by that he suppose he have not give  away all but that part of his real and personal estate remain not dispose of  it be say that this devise be in trust to pay not in trust to sell but I do  not think that a devise in trust to sell make more for the heir than this  devise for in that case it may be say that the testator design to change the  nature of the estate and have no regard for the heir but turn it into personal  estate this devise be to the plaintiff his heir and assign in trust to pay  that be whoever be in possession of the estate shall pay this sum and nothing  shall be personal demand of they but the estate only shall pay and be a  direction to the beneficiary and trust to follow the land in whosesoever hand  they come in the case of north and Crompton the real and personal estate be  unite the executor be a person favour one for who it appear the testatrix have  a kindness and the personal estate be not give he in trust but for his own  benefit therefore it will have be a strange construction to have decree it a  trust for the real estate or to suppose that she design he a interest in one  and that he shall be only a trustee of the other when both be blend together  it have be say that the call he kinsman be a implication of kindness this be  not the case of raise a use mosely report where call he omsman will be  material if no consideration be express but of a devise which in its own  nature purport a bounty and therefore by that rule all result trust will be  destroy but when the testator give the estate to the party for particular  purpose that exclude any supposition that he design it he as a bounty and he  call he kinsman not to show he design he a benefit but that he be one in who  he can repose a confidence as a relation and friend this be a rational motive  to cloth he with such a trust and it be dangerous to lie hold of such  appellative in order to go contrary to the whole course of precedent as the  case of London versus Garway vern a by will devise his land to trustee upon  trust to sell and to dispose of the money as he by write shall appoint and for  want of such appointment then the trustee be to stand seize in trust for the  benefit of his four nephew and if any of the appointees die before sale and  payment of the money their share be to go to his nephew a by write appoint his  trustee to pay several sum to several person but not near the value of the  land the surplus be decree to the heir as a interest result and not dispose of  in the case of Wych and Packington carve the term mosely report er p out of  the inheritance look like turn so much into personal estate yet the surplus be  decree to the heir Com Bristol versus Hungerford vern a devise his real estate  to his executor to be sell for payment of debt the surplus if any to be deem  personal estate and to go to his executor to who he give pound apiece the  surplus be decree to the heir and the decree be affirm in parliament Ventr if  one seize in fee make a lease or devise a estate for year for payment of debt  if the profit of the land surmount the debt all that remain shall go to the  heir though not so express and albeit the case of a executor the devise of the  other land to the plaintiff absolute be a argument against he for if the  testator design he this estate too why do he load one with a trust and give he  the other absolute and therefore the bill must be dismiss Swinb part sect n  vern decree no trust as appear by a manuscript report quote by Mr robin Chan  Cas vern more Cas case Ventr lev Leon Leon dyer cro James roll ab mosely  report Saturday June the that appeal and rehear