case clarke vers smith in c b where the same estate be devise to a man which  he will have take by descent be shall be in by descent notwithstanding the  possibility of a charge Nels Lutw SC salk SC black Com atk hark   Litt b u  black Rep Str SC hob ld raym ld raym lev infra p Com dig Bac Abr Str Mod SC  cro Elizabeth more pl SC Noy SC Vaugh vin Abr title descent I pl devise p c pl  heir W pl pow on devise ejectment upon not guilty plead a special verdict be  find to this effect a man seize in fee devise land to his wife for life and  after her decease to his next heir at law and to his or her heir provide such  heir shall pay to such person or person as his wife by will or other legal  write shall appoint and big land shall stand charge with the say the devisor  die and leave a daughter who have one son and die the wife die without make  any appointment to who the shall be pay the son of the daughter enter and die  without issue and the dispute be between the heir maternal of the son who  bring the ejectment and the heir paternal who be the defendant the son be dead  without issue therefore whether the son take by the will I e by purchase or by  descent be the question and it be resolve by the whole court that judgement  shall be for the plaintiff for the heir take by descent and not by the will  and it will be mischievous if every little legacy shall alter the course of de  cent upon which the heir may plead to the obligation of big ancestor riens per  descent and here the legatee will have have no prejudice and the land be  charge in the same manner as if construction be to be make that the heir shall  take by purchase comens and the legatee will have the same remedy in chancery  and Treby chief justice say that this proviso make neither a condition nor a  limitation not a condition for the devise be to the heir not a limitation for  the wife may make a appointment to a person not capable and the intent be not  that such person shall have the land for it be devise to the heir and this  resolution be warrant by the case roll Leon and Gilpiss case I cro that if a  man devise land to his heir in fee upon a condition his heir shall take by  purchase and the opinion Mod Rep Mod Freem SC pow on Dev a by two judge that  if a man devise land to his heir pay the heir shall take by the will and not  by descent be unintelligible and ill report for if a man devise land to big  heir charge with a rend issue out of it the son shall take by descent  judgement for the plaintiffLord holt in the case of Emerson v Inchbird lie  down the rule upon this subject in the follow word the difference be where the  devise make a alteration of the limitation of the estate from that which the  law will make by descent and where the devise convey the same estate as the  law will make by descent but charge it with encumbrance in the former case the  heir take by purchase in the latter by descent ld raym comens er p comens de  term sanct trin will III in b r