case roger ACHERLEY et ux appellant bowater vernon a other respondent that  February Mews dig xv barn v crow Ves jun a devise of land to trustee who be  afterward change by a codicil be not revoke by the codicil but the new trustee  shall stand seize upon the trust of the will although the word heir be make  use of in the codicil I S by his will give a legacy of pound to his niece e at  or marriage and by a codicil direct that this legacy shall be make up pound  Payable at or marriage the niece be and under at the time of the testator make  his codicil Held that he be entitle to interest for the whole pound from the  death of the testator though she have not then attain a codicil attest by  three witness and ratify a will amount to a republication of that will and  both ought to be consider together as one will I wms comens Rep Mod Mod viner  vol p can p can vol p can vol p can p can vol p can p can p can p can p can  vol p can Eq ab can can Thomas Vernon Esq be seize and possess of a large real  and personal estate the great part whereof he have acquire in the profession  of the law wherein he have deserve gain a great reputation and have a  intention to make a settlement of his estate to preserve the same in his name  and family in case he shall die without issue male and entertain a particular  affection for the respondent bowater Vernon his cousin and next heir male who  have for several year live in his family he on the that of January make his  will all of his own handwriting and thereby devise to mary his wife a annuity  of pound to be pay her halfyearly during her life by his trustee therein name  out of the rend and profit of his real estate clear of all charge and  deduction except parliamentary tax and to be in lieu and satisfaction of her  jointure and of all other claim and demand out of his real estate He also give  to his say wife during her widowhood his capital mansion house at Hanbury with  the garden orchard outhouse and building thereunto belong and the park adjoin  and some land usual keep in his own hand she keep the same in repair but in  default thereof or in case she shall marry again or not think fit to reside  there for three month in every year in each and every of those case his will  be that she shall deliver the possession of the say premise to the respondent  bowater Vernon if live and if dead to his son if he shall leave any or to such  other brown person of his name and kindred as be to enjoy that and the residue  of his real estate accord to the trust and limitation after mention the  testator likewise give to his say wife the use of all his good picture and  furniture in his say capital message during such time as she shall enjoy the  say message by virtue brown er p of his will but so as not to remove any of  they from the house his will be that his trustee to who he thereby give all  his say household good picture and furniture together with the book and other  good and furniture in his study and gallery and in all outbuilding and office  there shall permit and suffer the same to be hold and enjoy with his say  capital message as heirlooms by such person and person as from time to time  shall be entitle to the possession of the say capital message accord to his  will and he thereby empower his trustee to assign and transfer the say good  and furniture to other trustee as there shall be occasion and as they shall be  advice may be necessary and to have the trust so declare thereon as may best  tend to preserve and keep the say good and furniture in the say house and from  be remove or sever from it for the use and benefit of the person who shall or  may become entitle to the say house by virtue of his will and he further give  to his wife pound to be pay within a month after his decease and all the  household good and furniture of his dwellinghouse in London his coach and  coach horse and all his plate except what be therein after otherwise dispose  of together with all his broad gold jewel and watch and also the clock in the  London house the testator then give to his sister the appellant Elizabeth  Acherley a annuity of pound to be pay to her halfyearly out of the rend and  profit of his real estate to her own hand for her separate use exclusive of  her present or any aftertaken husband and in case she happen to survive his  wife his will be that the pound per and shall from the time of his wife  decease be make up pound per and during the life of his say sister for her  sole and separate use as aforesaid He give to his niece Letitia Acherley pound  at her age of eighteen or marriage which shall first happen provide she shall  marry with the consent of her father and mother and of his wife or of such of  they as shall be then live but if she marry without such consent he give her  but pound and the pound to cease and fall into his personal estate and be  dispose of as therein after mention and after some pecuniary legacy to other  of his relation the testator give to his cousin William Vernon all his message  land and hereditament at Horsington in Lincolnshire for year if he shall so  long live with power to make a jointure not exceed one moiety thereof and  after his decease the whole to his first and other son in tail male successive  he or they who shall have the possession of the say estate pay thereout pound  per and clear of all tax and deduction to his trustee during the life of his  wife the better to enable they to pay the annuity before devise and to perform  his will He then give the say premise in Lincolnshire to his trustee and  executor during the life of the say William Vernon to preserve the contingent  remainder to his first and other son in tail but in trust to permit he to  receive the profit brown for his life pay the say pound per annAnd he give to  Thomas Vernon young son of his cousin William Vernon decease pound per and  during his life some money legacy to other relation to each of his servant a  year wage and some charity and then devise in the word follow videlicet all  the rest and residue of my real and personal estate my debt legacy and funeral  charge be first pay and satisfy I give and bequeathe unto my brother Roger  Acherley Esq George Vernon rector Hanbury George Wheeler of the Inner temple  gentleman John bearcroft of mere green gentleman and Richard Vernon of the  Webbhouse gentleman their heir executor and administrator respective upon  special trust and confidence in they repose that the annuity and annual rend  before devise to my wife and sister and other the person herein for that  purpose above name be duly pay out of the rend issue and profit of my real  estate whereof I shall die seize or possess whether freehold or leasehold and  after payment of all my debt and all legacy that I have or shall by this my  will or by any codicil or codicil give or devise my funeral charge and the  charge of the probate of this my will and of administration be pay and satisfy  that my say trustee and the survivor or survivor of they or the heir and  assign of such survivor do lie out and invest the residue and surplus of my  personal estate in land of inheritance in the county of Worcester if  convenient may be or if not then in some near adjacent county within the space  of ten year after my decease and that they my say trustee shall stand seize  and possess of all my real and personal estate during the life of my wife to  the use and purpose in this my will mention and to enable they the better to  perform the same and that from and after the decease of my say brown er p wife  in case I shall happen to die without issue of my body then live they shall  stand seize and possess of all my manor message land tenement and hereditament  as well freehold as leasohold for life or year and also of the land hereby  direct to be purchase with the surplus of my personal estate and shall convey  settle and assure the same in such manner as counsel shall advice to the use  of bowater Vernon for year if he shall so long live with power of make a  jointure of any part of the premise except the capital message and manor of  Halibury so as such jointure do not exceed pound per and then to trustee  during his life to preserve contingent remainder and to his first and other  son in tail male and in default of such issue to his brother William Vernon  for year if he shall so long live with like power of make a jointure and to  trustee to preserve contingent remainder and to his first and all other his  son in tail male and in default of such issue to his brother Thomas Vernon and  to his first and other son in tail male with power of make a jointure in  manner aforesaid and in default of such issue to my kinsman Thomas Vernon only  son of Edward Vernon of Guildford in the county of Surrey clerk for year if he  shall so long live and then brown to trustee to preserve contingent remainder  and to his first and other son in tail male with a power of make a jointure as  aforesaid and in default of such issue to Vernon son of George Vernon of  Hanbury clerk for year if he shall so long live with a power of make a  jointure in manner before mention and to trustee to preserve contingent  remainder and to his first and all other his son in tail male and for default  of such issue male to all other the son of the say George Vernon beget or to  be beget for year if they respective shall so long live and to their first and  other son in tail male several and successive accord to their priority of  birth and seniority of age the elder and his issue male to be prefer before  the young and his issue male and for want of such issue to the heir male of  the body of Richard Vernon my greatgrandfather with a remainder to my own  right heir or as near to the use and limitation herein mention as can be do by  law to the intent to preserve the estate in my name and family but such  settlement conveyance and assurance so to be make be to be subject and liable  to such of the annuity as shall not be then determine give by this my will and  I do hereby direct and appoint that my say trustee during the life of my wife  shall pay the clear surplus of the profit of my estate real and personal after  payment of the annuity debt legacy and funeral and all other necessary payment  and outgo deduct unto the say bowater Vernon for so long of the time as he  shall happen to live and after his decease to his first and other son or to  such other person and person successive who accord to the devise and  limitation above mention shall or may become entitle to the possession of my  real estate or to have a conveyance thereof from my trustee after the decease  of my wife and he give pound apiece to his trustee who shall act in the trust  and some other money legacy to other person the testator live about nine year  after the make of his will during which time he purchase other land and  hereditament and a feefarm rend of pound S d issue out of his manor of Hanbury  which thereby become merge and some other feefarm and assart rend in the  county of Worcester and Salop amount to pound per and and he also contract for  the purchase of land in the county of Warwick amount to pound per and and pay  great part of the purchase money and be mind to dispose of all such land  feefarm rend and hereditament as he have purchase or agree to purchase in the  same manner as he have dispose of the bulk of his estate by his will and have  a intention to make a alteration of some of the trustee in his will and to  appoint new trustee in their stead and be desirous to quiet his trustee and  the respondent bowater Vernon and the other devisees in remainder after he  against all dispute and controversy which may happen to be commence against  they by the appellant and Letitia Acherley their daughter and in order to  ratify and confirm his say will except as to the alteration in the codicil the  testator on the d of February in his last sickness brown and about three day  before his death make a codicil to his will all of his own handwriting and  which codicil be in the word follow videlicet whereas I make a will date on or  about the that day of January whereunto Peter Cottingham Philip wright John  Cottingham and Thomas Alcock be witness now I hereby ratify and confirm the  brown er p say will except in the alteration herein after mention in the first  place the portion or legacy thereby give to my niece Letitia Acherley the  daughter of my sister Acherley be make up in the whole the sum of pound and  Payable to her at her age of or marriage which shall first happen and I  recommend it to her to take her own mother and my wife consent to her marriage  if they shall be then live but my mind and will be that what I have give to my  sister and niece be by they accept and take in lieu and satisfaction of all  they or either of they may claim out of my real or personal estate and upon  condition that they release all right and title thereunto to the executor and  trustee in my will name and have thus provide for my sister and niece I devise  all the land by I purchase since the publish of my will either in  Worcestershire Shropshire or Warwickshire to the trustee and executor in my  will name subject to the same trust and for the same use to which I have  mention to devise my manor of Hanbury and the bulk of my estate I hereby  revoke that part of my will whereby I appoint Roger Acherley Esq George Vernon  clerk and Edward Vernon clerk to be three of the trustee in my will and I  request and desire my brother Francis Keck and John Nicoll esquire to be two  of my trustee and I devise my real estate to they accord after all other debt  and legacy I will that out of the surplus of my personal estate the sum of  pound be set apart for the poor of Hanbury and Shrawley to be keep as a  perpetual stock for buy gown for poor old man and woman and coal and other  fuel in the winter at the discretion of my executor and trustee the testator  then give some money legacy and a annuity of pound to mary anchor for her life  and to John Bonaker one of his servant the small copyhold tenement at Hanbury  wherein his father live to hold for his life on the that of February the  testator die without issue leave mary Vernon his widow and the respondent  Elizabeth Acherley his sister and heir at law whereupon Mr Nicoll Mr Wheeler  Mr bearcroft and Mr Richard Vernon prove the will and codicil in the  prerogative court of Canterbury afterward Letitia Acherley the testator niece  exhibit her bill in chancery for the portion or legacy of pound give to her by  the testator codicil and on the that of July obtain a decree for the same with  interest from her age of although the same be not Payable until her age of or  marriage first happen nevertheless the respondent bowater Vernon submit  thereto to avoid dispute with so near a relation of the testator brown the  appellant in September exhibit their bill in chancery against the respondent  and the say George Wheeler and John bearcroft two other of the trustee of the  testator will who afterward die and also against mary Vernon the testator  widow insist that the testator by his will have make no disposition of the  reversion in fee of the land in Horsington devise to William Vernon and his  first and other son in tail and that therefore the same descend to the  appellant Elizabeth Acherley as heir to the testator that the testator by his  codicil devise all the land purchase by he since the publish his will but do  not mention his feefarm and assart rend and that therefore the same also  descend to the appellant that the testator make no surrender of his copyhold  land to the use of his will and that therefore the same be not well devise  that as the purchase of the land contract for be not complete at the testator  death nor be in possession thereof the same be not well devise by the codicil  but his equitable right and interest therein descend to the appellant that the  new purchase land be devise to the trustee and executor in the will name and  not to they and their heir they have only a estate for life therein and the  reversion and inheritance expectant on the trustee death ought to descend to  the appellant as a interest undisposed of that the testator have by his  codicil revoke that part of his will whereby he appoint Roger Acherley George  Vernon and Edward Vernon to be three of his trustee he by that clause revoke  all the trust and use in his will concern his real and personal estate devise  to the trustee and leave his real estate to descend to the heir and his  personal estate to be distribute accord to the act of distribution that the  testator have appoint Mr Keck and Mr Nicoll to be two of his trustee and  devise his real estate to they accord there want word to pass the inheritance  thereof to they as to the release direct by the codicil to be make by the  appellant Elizabeth Acherley that the testator intend the same shall extend  only as to the sum of pound which by article brown er p make upon the  appellant marriage be to be lie out in land and settle to the use of the  appellant and the issue between they and which sum the testator have pay to  the appellant Roger Acherley and have not lie out the same accord to the trust  in the say article and as to several manuscript and report of case determine  in the court of chancery collect by the testator that the same be as a  monument or insignia of the testator great honour and learning and ought to go  to the appellant Elizabeth Acherley as a inheritance descendible to his heir  upon these ground the appellant by their say bill claim all the testator real  estate except what be give to mrs Vernon and pray that the rend and profit  thereof may be account for to they they also pray a account of the testator  personal estate and that the same may be distribute accord to the act for  distribution of intestate estate brown the several defendant to this bill put  in their answer and the respondent bowater Vernon by his answer insist that  the testator intend by his will and codicil to make a full and complete  settlement of all his estate real and personal that he have thereby well and  effectual devise the same and that the appellant ought to make and execute a  release of all right and title thereto accord to the condition in the testator  codicil or relinquish what be give to they by the will the respondent bowater  Vernon soon afterward exhibit his cross bill against the appellant and the  trustee of the testator will and the say mary Vernon his widow to have a  execution and performance of the trust in the say will and codicil on the that  of November both cause be hear before the Lord chancellor Macclesfield when  his lordship be please to declare that the testator will and codicil be well  prove and that the say will not only stand unrevoked by the codicil but be  thereby confirm that the testator sign and publish his codicil in the presence  of three witness be a republication of his will and both consider together  make but one will and that by the say testator will and codicil his feefarm  rend assart rend and the land contract to be purchase by he and all the  testator real and personal estate and all the interest he have therein except  his copyhold land purchase before his will if any such do well pass and do  therefore order that the appellant bill shall stand dismiss and his lordship  declare that such dismission ought to be with cost but the respondent bowater  Vernon then present in court wave the same if the appellant will give a  release of their claim and demand out of the testator estate except the  copyhold land purchase before the will if any and what be give to they or  either of they by the will it be further order that if the appellant shall by  fine and such other mean as Mr Edward one of the master of the court shall  approve make and execute a effectual release of all their claim and demand to  or out of the say testator estate real and personal except the copyhold land  purchase before the testator will if any such and what be to they or either of  they give by the will or shall by a instrument to be settle by the say master  relinquish what be give to they or either of they by the will by such time as  the master shall appoint that then the appellant shall be excuse payment of  cost to any of the defendant except mrs Vernon but if the appellant shall not  think fit to execute such release or to relinquish the legacy give to they or  either of they by the will within such time as shall be appoint by the master  then they shall pay all the defendant their cost to be tax and in the cross  cause it be order and decree that the trustee shall account for the testator  personal estate and the respondent Keck and Nicoll refuse to act in the trust  it be further order that they shall release their trust to Mr Wheeler and  Richard Vernon the other survive trustee and that the brown master shall  appoint new trustee in the place of the trustee that be dead or refuse to act  and the survive act trustee be to convey and assign the testator real and  personal estate as the master shall direct to the use of themselves and the  new trustee upon the trust direct and appoint by the say testator will and  codicil and that the trustee shall proceed to complete the purchase of the  land and hereditament contract to be purchase by the testator in his lifetime  and that the residue of the testator personal estate shall be invest in the  purchase of land of inheritance in the county of Worcester or in some near  adjacent county to be approve of by the master who be to see the land when  purchase and also the land contract to be purchase by the testator settle and  convey accord to the direction of the say will and codicil and it be further  order and decree that the defendant mrs brown er p Vernon shall hold and enjoy  the house at Hanbury and the land hold therewith accord to the testator will  and that the trustee shall pay her the annuity of pound half yearly free from  deduction except parliamentary tax and proper direction be thereby give for  the safe keep of the title deed relate to the testator real estate at his  house at Hanbury and also touch the charity give by his will and codicil and  as to the manuscript case and report collect by the testator all party submit  and desire that the same may be inspect print and publish as the court shall  think best for the reputation and honour of the testator and for the benefit  of the profession of the law his lordship reserve the further consideration  thereof and it be further order that all party shall have their cost in that  cause to be tax and pay out of the testator personal estate except the  appellant if they shall think fit to execute such effectual release or  relinquish what be to they or either of they give by the will as before direct  then they be likewise to have their cost of that suit to be tax and pay out of  the say personal estate the appellant apprehend this decree to be erroneous  and contrary to the fix and establish principle of law and equity appeal from  it and in support of the appeal it be argue c Wearg l stucley that the  testator by his codicil have ratify and confirm his will except in the  alteration in his codicil mention the most material of which alteration so  except be the devise of that real estate to Mr Keck and Mr Nicoll only which  he have before by his will devise to other trustee name in the will and  therefore this except devise be a absolute revocation of that part of his  former will that this real estate be only devise by the codicil to Mr Keck and  Mr Nicoll and they be thereby express declare to be trustee for the testator  by the word my trustee and no other declaration of trust be make of this  devise for any other person the trust thereof on the death of the testator  must by the principle and rule of law descend to his heir the appellant  Elizabeth who the law have appoint to succeed or if it be doubtful for who  they be trustee yet even in that case brown by the fix and establish rule of  law the trust must result to the heir of the testator for the right of the  heir to succeed be a certain right can never be defeat unless by the right of  some other person equal certain but which in the present case can not be  pretend that the statute of fraud and perjury require that all declaration or  creation of trust of land except trust arise and result by implication of law  shall be manifest and prove by some write sign by the party or by his last  will in write or else they shall be utter void and of none effect but as the  testator have not express declare or limit over the trust of the devise to Mr  Keck and Mr Nicoll to any other person than himself that trust therefore as  well by the rule of law as the rule institute by this statute can not possible  arise to the respondent but be by law cast upon the appellant Elizabeth as  heir that there be no word in the codicil which devise or pass the feefarm  rend or assart rend purchase after the will the devise clause be of the land  only that the codicil be make by a separate write and the write contain the  old will not have be reexecuted and attest by three witness the codicil  although it have three witness can not be a republication of the will so as to  pass the feefarm rend by the will that the testator have no power to devise  the land which be only contract for because neither he or his trustee have any  estate therein in possession reversion or remainder but only a contract that  they shall be convey at a time which do not happen in the lifetime of the  testator and even if it have be in his power yet there be not any word in the  codicil sufficient to pass these land last that the appellant be decree to pay  cost unless they consent to part with what right they claim to the premise in  question which ought not to have be do and therefore it be hope that the  decree so far as concern the feefarm rend and assart rend purchase after the  will the land contract to be purchase and not convey the trust of the except  devise to Mr Keck and Mr Nicoll whereof no trust be declare or limit over and  also as to the cost will be reverse and that those particular estate together  with the benefit of the contract will be decree to the appellant and that they  shall have their cost in the original cause and the rather for that afterward  there will be leave of the testator estate to the respondent who be but remote  relation to the value of pound or upward to this it be answer t Lutwyche c  Talbot on the other side that it be manifest the testator intend by his will  and codicil to make a settlement of his whole brown er p estate real and  personal except what be otherwise express devise upon the respondent bowater  Vernon and his issue male and the other person in remainder after they in  order to preserve the same in his name and family for by his codicil he  declare his mind and will to be that what he have give to his sister the  appellant Elizabeth and to his niece her daughter shall be by they accept and  take in lieu land satisfaction of all that they or either of they may claim  out of his real or brown personal estate and upon condition that they release  all right and title thereto unto the executor and trustee in his will name and  it be insist that there be word in the codicil sufficient to answer this  general intention of the testator and to pass the feefarm rend and assart rend  as well as the rest of his real estate purchase after make the will but if  there be any doubt touch the extent of the word in the codicil yet the  testator have thereby take notice of his will and ratify and confirm the same  and have execute the codicil in the presence of three witness it ought to be  take as a republication of the will and both ought to be consider together as  one will that as to the land contract to be purchase by the testator in his  lifetime and for which he have pay great part of the purchase money it be  contend that whether they be to be consider as real or personal estate they be  well devise by the codicil that the testator do not by his codicil revoke or  intend to revoke any of the devise or limitation in his will of his real  estate or of the residuum of his personal estate but bare to change some of  his trustee for which he have particular reason and to substitute new one in  their stead and it be manifest that the testator intend Mr Keck and Mr Nicoll  to be two of the trustee for the respondent bowater and those in remainder  after he the trust in the will be the only trust that can be intend and make  use of a very significant and comprehensive mode of expression for that  purpose by the devise of his say real estate to they accord and as to the  appellant cost it be hope that if they do not think fit to accept the offer  make by the respondent bowater Vernon at the hear they shall not only pay cost  in the original cause but shall also lose their cost in the cross cause for  that their original bill be vexatious have thereby and by their answer to the  cross bill dispute almost every branch and article of the testator will and  codicil and put the respondent bowater to a considerable expense in defend the  same after hear counsel on this appeal it be order and adjudge that the same  shall be dismiss and the decree therein complain of affirm jour vol p