case HODSELL against bussell LincolnsInnHall December S c sub nom Hodgeson v  Bussey atk also cite as Hodsel v bussy in Ves sen discuss Theebridge v  kilburne Ves sen Garth v Baldwin Ves sen distinguish Knich v ware sim S  William v Lewis h l c refer to in re Jeaffresons trust l r Eq a term on trust  for a life then to the heir of the body of a beget or to be beget by b her  husband and to their executor administrator and assign and for want of such  issue then over to c this be a good limitation over to c a see brook v tailor  Moseley Stephens v Stephens case t t Sheffield v Lord orrery atk Pelham v  Gregory brown p c fonnereau v fonnereau dougl marsh v marsh bro c c knight v  Ellis bro c c Hockley v Mawby bro c c Fearne count Rem a S c atk S c bar c  Hardwicke Lord chancellor Edward bussell be possess of a term for fiftynine  year in reversion after the expiration of a prior term by indenture date the  twenty day of January assign it to trustee their executor and administrator  upon the follow trust first in trust to raise a ground rend to be pay to the  chief landlord and subject thereto in trust that the trustee shall permit the  defendant grace bussell wife of Edward bussel to receive the rend and profit  of the term of fiftynine year for and towards her better support and  maintenance if she shall so long live and after her decease to the use and  behoof of Edward bussell the husband for life and after the decease of grace  and Edward in trust for the heir of the body of the wife beget or to be beget  by Edward the husband and to their executor administrator and assign for and  during the rest and residue of the say term and for want of such issue then in  trust for the separate use of my wife daughter Henrietta Hodsell the plaintiff  wife for life and after her decease then to the use of William and Edward son  of the say Henrietta Hodsell their executor and administrator for and during  the residue of the say term Edward bussell the assignor who create the term be  dead without ever have issue by his wife who survive he and be defendant  before the court Henrietta Hodsell the daughter who have a remainder in this  trustestate together with her husband and son Edward have bring their bill  against the widow and trustee to have the deed and write relate to the  leasehold estate and to modern report have the deed of trust bring into court  to be secure for the benefit of all party the general question be whether the  plaintiff be entitle to have a decree for secure these deed and write and that  depend upon the interest they have in the term against this interest claim by  plaintiff which be to have the benefit of this term after the death of grace  bussell there now appear no issue by her late husband the objection by  defendant be that the limitation to the plaintiff and son be too remote and  what the law will not allow of in the case of a term for year or trust of a  term and two reason have be rely upon from the deed and nature of the trust  modern report er p first as this deed be pen the whole trust of the term be  vest in the defendant grace bussell but if that be not so yet second that the  trust of the term be dispose of in contingency to the heir of the body of  grace bussell by Edward her husband to be beget and that if there have be such  heir of the body they will have take the whole trust of the term and the event  of there have be no such issue of grace bussell will not vary the case these  objection be make to show that the limitation over to the plaintiff be too  remote as to the first I be of opinion that the whole trust of this term be  not vest in the defendant grace bussell it appear that the word heir of the  body of grace bussell beget or to be beget by Edward her late husband be word  of purchase and a description of the person and not word of limitation it be  admit on both side that the word heir of the body or issue may be word of  purchase and the authority in the book make that extreme plain accord to the  circumstance of the case and though the word be strict word of limitation yet  they may be word of purchase archer case a   this be a devise to the next heir  male of a and the heir of the body of such heir male a be strong to that  purpose and in that case to make the first take and have only a estate for  life the resolution do not turn upon the word heir male of the body be in the  singular number but upon this that the word of limitation be to the next heir  male of a and the heir male of the body of such heir male those late word be  superadd to the first word in the case of Lisle v grey b raym lev S c Pollexf  S c Jones S c show S c atk S c Freem b sir Thomas Raymond go further than that  and though there be a difference in the book whether that judgement be affirm  in the exchequerchamber yet Tracy justice in the case of legal v shewel c Eq  Abr vern Rep in Eq Peer wms c take notice that he look into the record and  find that it be affirm those limitation be of estate of inheritance and the  last of they be in modern report the case of a deed if in the case of estate  of inheritance in which it be proper to admit of strict limitation in tail the  word heir male of the body may be turn into and consider as word of purchase  and not limitation it will not be wonder at that if in the case of a term for  year which do not proper receive a limitation in tail in which word of  limitation be not proper to be use such limitation have also be make several  case be cite videlicet peacock v Spooner a vern Freem Eq Abr a of which case I  very late in the case of villers v villers b Eq Abr b give a particular  account which receive different determination and there be great variety of  opinion of the judge upon the appeal to the house of lord but the decree be  affirm there be other case upon this question Daftord v goodman c vern Prec  Chan Freem c web v web d Peer wms d and Donn v Merrifield e viner Abr e but I  can rely upon that last case as any authority the limitation be much like the  present videlicet item all other my leasehold estate I devise to a his  executor c to hold during the term for the follow use to Catherine Donn for  life then to his the testator brother John for life then to such person as  John shall marry and after her death the wife of John to the heir of the body  of my brother John their executor and administrator with remainder over and a  issue be direct to try the validity of the deed and not the construction of  the will for upon that deed it be that the title and power of the testator to  devise depend it be probable that as to the account give by the counsel of the  sentiment of the court it be right for if the court have think the limitation  over have be have a issue will not have be direct because that will have be  vain and it be probable the court may be incline that the limitation over be  good but that be too slight for I to lie any weight upon these case of trust  of term for year be all ground upon the apparent intention of the party and  construction of the word favour that intention modern report er p the  objection to this be by defendant that these case arise either upon  marriagesettlement or will S and that in the case of will S they be always to  be construe accord to intention but deed receive a strict construction but as  to this construction the case of Lisle v grey be a answer clear for that prove  that even in the case of a inheritance and on a deed if the intention appear  to make the word heir of the body to be word of purchase and to constrain the  court to make that construction then they ought to do it as to the distinction  between this case and those that arise upon marriageprovisions there be more  weight in that but there all the case cite before depend upon the intention of  the party appear upon the deed and if that be not the rule for the court to  ground themselves the foundation will fail modern report in the case of  voluntary settlement and term for year in trust if the intention appear it  ought to prevail and there be no difference between that and  marriagesettlement but in the latter the court will sometime make a more  favourable and strong construction to comply with the intention of the party  and to create a ground of contract than they will in case of voluntary  settlement the question be whether the intention of the party here express by  the word of this deed require this construction that the word heir of the body  c shall be construe word of purchase and I think clear it do and that more  strong than any one case upon term for year that have be cite and I think the  word use here declare the trust for the benefit of the wife be of the same  import as if it have be give to her for her life only for the word be in the  first place to permit the defendant grace bussell to receive the rend and  profit for and during the say term for and towards the better support and  maintenance if she shall so long live it be admit in the argument if the word  have be for her life only that will have turn the word heir of her body into  word of purchase and this have be so adjudge in the case of a freehold estate  in vent a case be cite there where the word be to I S et non aliter and to the  heir or issue of the body and they be hold word of purchase in the case of  backhouse v well a post Eq Abr ld ray stram Mod Mod fort pale yellow a the  first limitation there be for life only turn the subsequent word into word of  purchase and can not be construe to enure by way of enlargement of the word to  the first taker in contradiction to the word only here the word if she shall  so long live make it contingent on condition that if she live out the whole  term she shall have it but if she do not she shall not so that these word be  in the affirmative and imply a negative the word that make this strong than  Daftord v goodman b vern Prec Chan b or peacock v Spooner c Eq Abr Freem vern  c be the word to the heir of her body their executor administrator and assign  which amount to a declaration that the executor and administrator of the heir  of the body shall take this term and not her executor and administrator and  amount to a declaration of the intention to vest the whole property of the  term in the manner as the word be use videlicet in the heir of the body their  executor and administrator and not in grace bussell herself and the addition  of the word their executor and administrator prove that it be not the party  intention that this term shall go to all the heir of the body in succession so  as to include all the heir of the body for ever but that it shall vest in some  particular person modern report the reason why the word heir of the body make  a tail in freehold or vest the whole property in the term be from the  presumption of law that it include all the heir for ever but here it be to go  to the heir of the body their executor and administrator therefore I think the  whole trust of this term be not vest in grace bussell and that the word heir  of her body be not word of limitation but of purchase and descriptive of the  person to take after her death the objection be that suppose heir of the body  to be word of purchase yet the whole interest of the term will vest in such  heir of the body in case there modern report er p be such and consequent that  the limitation over will be still too remote for it be say where a limitation  over in contingency be to the heir of the body or to a first son and the heir  of his body though that contingency never happen and there be never a son bear  yet that the limitation be too remote and that let that event fall out how it  will it will not alter the law I shall not consider the case of Stanley v  leigh a Peer wms a Clare v Clare b case tempt Talb b Saberton v Saberton c  case tempt Talb c gore v gore d ante Mod Peer wms stram d and Gower v  Grosvenor e bar Ch Rep post e whether a limitation over after a tail in  contingency be good where the contingency never happen or vest because upon  the pen of this limitation over there be no occasion for it for if the word  heir if the body of grace bussell c be word of purchase then this be no  limitation in tail for it be the same as if a limitation have be to her old  son by Edward bussell her husband or in case of no son then to the daughter  their executor and administrator the whole trust of the term be by these word  express limit either in the son or daughter that shall be heir of the body for  the word their executor and administrator show that the intention be to vest  the whole trust of the term in some particular person and not that the trust  of the term shall go in succession to the heir of the body if it be to vest in  a particular person then at the time of such vest it be impossible it shall go  on accord to the expression from heir of the body to heir of the body and to  the executor c to each heir of the body therefore when there be a limitation  to the heir of the body their executor c it must vest in the first taker as  much as if it have be a limitation to a first son his executor and  administrator or in case of no son then to the daughter their executor and  administrator and if this be the construction of these word heir of the body  their executor and administrator consider then the effect of the subsequent  word of the limitation over videlicet and for want of such issue then in trust  for Henrietta Hodsell c if the former word heir of the body and the word for  want of such issue will be the same as if it have be say modern report for  want of son or daughter of grace bussell by Edward her husband to be beget for  the word such issue in the limitation over must receive the same construction  as the word heir of the body as use before for the word such confine the word  to the same as the heir of the body be this be not too remote for it must be  know at the time of the death of the husband or nine month after whether there  will be any issue and that bring it to the case of gore v gore and it be  common with a case of a limitation of the trust of a term to limit it to the  first son if there be one and if there be not then to the daughter and if no  daughter to the executor or administrator of the father perhaps it may be  object that this do not differ from the case of a limitation to a first son  and the heir of his body which be the case of Stanley v leigh a Peer wms a  Higgens v Dowler b salk Peer wms b Clare v Clare c case t t c and Saberton v  Saberton d case t t d but that objection will not hold for the construction  differ from all those case and in that case above the whole trust of the term  be contend to vest in the first son by construction of law only to avoid a  perpetuity because it be say that there be a intent to create a entail of a  chattel but there be no such intent if the construction I have put be right  for when the limitation be to the heir of the body their executor and  administrator this must be the construction videlicet to the first son and if  no son then to the daughter their executor and administrator in the case put  of the word issue or heir of the body they be nomina proceeding by inference  and the word for want of such issue mean issue in infinitum in the present  case it must mean heir of the body bear within a reasonable time after the  death of the husband here it be heir of the body by express word in the other  case it be only by construction of law therefore I think the construction that  arise from the word and the difference modern report er p that arise in this  from all the other case make it a plain case and if so the plaintiff must have  these deed and write decree that the plaintiff Henrietta Hodsell and Edward  her son be entitle to the reversion of ninetynine year term after the decease  of the defendant grace bussell accord to the deed of the twenty of January and  I therefore decree that the defendant do bring it before and leave it with the  master