case henry gibbs administrator of his late wife Elizabeth gibbs late Elizabeth  davis decease plaintiff henry davis survive executor of dame margaret Boreman  decease and brother and heir of his late sister the say Elizabeth gibbs  defendant in court Lord chancellor captain Wilkinson lady Boremans second  husband purchase a annuity of pound per annum for ninetynine year determinable  on the death of himself and lady Boreman and the long liver of they from  Robert Stanton and Elizabeth his wife and for secure the payment of it the say  Robert Stanton acknowledge unto Anthony Collins in trust for the say captain  Wilkinson and lady Boreman a statute staple of pound which be defeasanced for  payment of the say annuity and the say annuity be great in arrear to lady  Boreman after captain wilkinson death the manor and farm of BrobrickHill in  the county of buck whereof the say Robert Stanton be seize in fee be extend by  virtue of the say statute in lady Boremans lifetime and she get into  possession of the say manor and premise which be about pound per annum Thomas  young lady Boremans four husband before his marriage by deed and fine settle  the manor of Cranbrook and the land thereunto belong in the county of Essex to  the use of himself for life remainder to dame Margaret Boreman for her life  for her jointure remainder to the heir of their two body remainder to his own  right heir and covenant that the say jointure land then be and during lady  Boremans lifetime shall be and continue of the value of pound per annum free  from encumbrance in Thomas young die without issue by the say lady Boreman and  upon his decease the say lady enter upon the say manor of Cranbrook and the  land thereunto belong and enjoy the same twentyfive year after her say mosely  report husband death but the same do not exceed above the yearly value of  pound the say young have before his marriage with the say lady Boreman  videlicet on the that of march demise the say manor and premise except the  house coachhouse and stable and hay for four horse and all the wood timber and  tree to Matthew young for a term of fiftyone year at a peppercorn rend the say  Matthew young in consideration of pound pay by sir William Boreman lady  Boremans five husband assign the say manor and premise unto William Yardley  for the residue of the say term in trust to corroborate lady Boremans say  jointure and for the repayment of the say pound to sir William Boreman with  damage for the breach of the say covenant of the say Thomas young in the value  of the say manor of Cranbrook and premise for so much as the same fall short  of pound per annum dame Margaret Boreman widow be also seize in fee of rand in  ken and be so seize and possess she by her last will date the that of march  devise in the word follow item I give devise and bequeathe all my manor  message land tenement and hereditament and real estate whatsoever with their  and every of their right member and appurtenance whatsoever situate lie and be  within the several county of ken Essex buck Bedford or elsewhere within the  kingdom of England of which I shall be any way seize or entitle unto to my  nephew Henry Davis and his sister Elizabeth my niece now wife of Mr Henry  Gibbs to hold to they the say Henry Davis and Elizabeth his say sister equal  during their natural life to be equal divide between they share and share  alike they joint pay out of the rend and profit of the say estate unto my  brother Richard Davis their father the full sum of pound ayear during his  naturallife and from and after the decease of mosely report er p my say  brother nephew and niece then I give all my say real estate to the right heir  of my say nephew Henry Davis and my say niece Elizabeth Gibbs equal in equal  part to hold to they and their heir as tenant in common and not as joint  tenant always provide that my say nephew and niece during their joint life and  by their joint consent shall and may have full power to dispose settle and  convey all or any of the say real estate to they devise as aforesaid for any  purpose or to or for any other use or use as they shall both agree to and  think meet and their circumstance in this life shall require mosely report and  by the same will after have devise several legacy she also devise as follow  all the rest residue and remainder of my personal estate plate gold jewel  medal picture household good and furniture and all my mortgage bind specialty  and credit whatsoever they shall consist of my wear apparel only except I give  and bequeathe the same and every part thereof after payment of my debt funeral  and legacy to be equal divide between my say nephew Henry Davis and his say  sister Elizabeth part and part alike and she appoint the say Henry Davis and  his say sister Elizabeth executor of her will the d of April lady Boreman die  and the defendant and the say Elizabeth Gibbs prove the say will and the  defendant possess himself of the whole estate some time after Theobald  Thompson and mary his wife daughter and heir of the say Thomas young file a  bill against the plaintiff and his wife and the now defendant pretend thereby  that lady Boreman be dead the say manor of Cranbroke descend to the say mary  and the defendant by their answer insist that they be entitle to hold over not  only till they be satisfy the money pay for the say fiftyone year lease with  interest by lady Boreman but also till they be satisfy the deficiency of her  jointure which be more than the reversion thereof will make good and the cause  be hear the court declare accord the that of November the plaintiff file his  bill against the defendant in his and his wife name and after her death a bill  of revivor and supplemental bill for a account and share of lady Boremans real  and personal estate as administrator to his wife and on the that of January  this cause be hear ex part his honour the master of the bolls decree that a  moiety of the mortgage term and of the land extend belong to the plaintiff as  part of the personal estate of lady Boreman and do not pass by a devise of the  real estate and that a commission shall issue to divide the say estate in  Essex and buck and this cause be hear again at the roll the saint of may his  honour in these point confirm his former decree and on the that of December on  a rehear the same be affirm by the Lord chancellor and this cause now come on  again to be reheard mosely report Mr solicitor general for the defendant the  chief question be whether the plaintiff be entitle as administrator to his  wife or the defendant as her heir at law and this depend upon two other  question whether the manor of Cranbrook and Brobrickhill be include in the  devise to the defendant and his sister and if it be what estate they take by  the devise the manor of Cranbrook be hold by lady Boreman not only for the  security of pound but to make good the deficiency of her jointure which will  amount to more than the estate be worth and the manor of Brobrickhill be  extend on a statute staple of pound security for the arrear of a annuity of  pound a year which will amount to more than the value of the estate which be  but pound per annum and lady Boreman have be in possession of they many year  and these estate come under the word of the devise for they be manor and land  though they be chattel and she have be so long in possession of they and have  they as a security for more than their value may look on herself as the  absolute owner and design to pass they as real estate and the subsequent word  show that this be her real intention within the several county of ken Essex  buck c and she have no other land in Essex and buck so otherwise those word  must be reject of which I shall be any way seize or entitle unto sure he be  some way entitle to these land and her intention to pass they be reasonable  her interest in they be as valuable as the inheritance but word improper to  pass a thing have be allow to carry it in favour of will Leon Styl rich versus  sander a man be seize in fee of a portion of tithe in Holford and have nothing  more there devise all his feesimple land whatsoever to his brother and his  heir and it be adjudge that the tithe shall mosely report er p pass by the  word land for though they be distinct and arise out of the land yet the  aptness of word be not so much to be consider as the intention of the testator  who must intend that he have a feesimple estate in Holford for he have nothing  there but this portion of tithe to satisfy that word roll ab that case be  strong than this in question there word that be improper be extend to thing  that will not fall under that description but here the word be sufficient  these estate be manor and land which she be entitle to and lie in buck and  Essex but the plaintiff object the last clause whereby she devise all her  mortgage credit c but that be no answer to our mosely report objection that  the word in Essex buck must be strike out if these estate do not pass by the  devise and that be only a residuary clause and can contradict a former devise  which will operate as a exception out of it the second question then be  suppose these estate pass what e state be give if the plaintiff wife be  entitle only for life then the plaintiff have no title to her moiety but if  she have a absolute interest in it he have first she devise to they during  their natural life and if the devise have go no further no doubt but her  interest will have determine at her death then to show that this be her  intention she begin with a new devise I give all my say real estate to the  right heir c and therefore right heir must be take as word of description and  not of limitation and then the right heir of Elizabeth will be entitle to the  one moiety which belong to Elizabeth for life and the rather from the nature  of the estate which be only chattel for if heir shall be take as word of  limitation then her right heir will take nothing but the estate will go to her  executor or administrator but if they be construe word of purchase heir may  take and this be agreeable to the case of peacock and Spooner decree by the  house of lord and therefore the strong authority vern and that be on a deed  this be the case of a will and Lord summer decree the case of Dafforne versus  goodman vern on the authority of the case of peacock and Spooner John bolt  possess of a term for ninetynine year on his marriage with apolline assign the  term in trust for himself for life remainder as to a moiety to apolline for  life for her jointure remainder to the heir of the body of apolline by he to  be beget remainder as to the other moiety to the child of the body of apolline  they have a son and it be resolve that heir of the body be word of purchase  and not of limitation in this sense the word will have their intend effect in  the other they can but the estate instead of go to the heir will go to the  executor therefore it be plain the intention of lady Boreman to pass these  estate and it be likewise her intention to devise they to defendant and the  wife of the plaintiff for life only and that those who be to take in the  second place shall take as purchaser Wentw off of ex Mr lutwych here be a  single point of law though we be in a court of equity for your lordship  determination which be plain with we from the authority of the case of peacock  and Spooner which can her contradict a term for year be assign in trust that  baron and feme may receive the profit during their life and the life of the  long liver of they mosely report and after their death to the heir of the body  of the wife to be beget by the husband and the Lord chancellor decree that the  whole interest of the term vest in the wife but that decree be reverse by the  lord commissioner who hold that the heir of the body take by purchase and  their decree be affirm on appeal by the house of lord the plaintiff say only  land of inheritance will pass by the first word but sure these chattel real  may be consider in one sense as real estate though they be personal estate as  they belong to the executor and it be plain the testatrix intend that some  estate in Essex and buck shall pass and she have no other in those two county  and therefore this be within the reason of those case where thing in a will  pass by the intention of the testator though the word he use be improper the  second point be what estate the devisees take the plaintiff say the whole  chattle interest be in they to who the testatrix have express devise it for  life only and therefore that construction if it can must be prevent a  limitation of chattle real must have another construction from a limitation of  a inheritance and therefore though in the case of a freehold these word will  make a feesimple they will not in the case of chattle real for since the right  heir can only take as purchaser of these term the other construction will  whole disappoint the intention of the testatrix if a fee be limit to one for  life remainder to the heir male of his body this be a estate mosely report er  p tail for there though heir male be take as word to enlarge the first estate  yet the heir take though not as purchaser but if a term be limit in that  manner if heir of the body do not take as purchaser they can take at all but  the estate go to the representative of the first taker and heir at law be in  all doubtful case favour but wherever there be a express devise to a heir at  law that devise be never take from he by doubtful word or by implication as to  the last word they be only general word and can only be understand of what  mortgage and credit c be not before give away and in the case of Amherst and  Litton Ant Cas great stress be lie on the last devise of all his land c  whereof he be seize in law or equity c because it be not of all the rest and  residue of his land c as the word of this will be mosely report Mr  attorneygeneral for the plaintiff the decree that have be make in this cause  do not contradict former resolution the second point now insist on be not  think of or mention till this hear we must judge of the will not from the  first clause only but from the several clause of it consider together it be  plain these two estate can pass by the first clause from the word themselves  and the nature of the estate the word show the testatrix design to give away  only what be proper her real estate and which be capable in its nature of go  and descend to heir some chattle be indeed call real because they favour of  the reality as they be interest derive out of the real estate but they be only  personal estate and belong to the executor and will not pass by a devise of  the real estate Swinb part sect bro ab title do n the last word and real  estate whatsoever show the general word manor message c be to be carry no  further and when she devise it over she give her say real estate and by the  last clause it appear that she do not design to pass they by the first clause  she make a complete disposition of all her estate both real and personal first  she devise all her real estate then she bequeathe several legacy and in the  last place she give all the rest g of her personal estate c and all her  mortgage c and though what be due on the security be of more value than the  estate that will not alter the nature of the interest she have in they but it  be say that if these estate do not pass there be nothing for the word in Essex  and buck to operate on but it do not appear in the cause that she have no  other land there but if it do the inference they have make be too strong  because there be other word which may be satisfy and these be general word  suppose the word have be all my real estate in the kingdom of England if only  real estate be to pass let the word be ever so general nothing else can the  defendant say the last clause be only a devise of the residue but it be not a  residuary clause as to the mortgage c but all her mortgage c be express devise  so it be plain that she do not think she have give they away before but  suppose these estate pass by the first devise then they pass by the last  clause as a residue after the death of the daughter for in the devise over to  the right heir all the other word be drop and only the real estate be give  over as to the second point what estate the plaintiff wife take if the word be  not sufficient to carry these estate over the question be at a end but if they  be sufficient the whole moiety vest in her but it be say that right heir be  word of purchase and only description story person child or heir of the body  indeed may be take as word of purchase and mosely report the testator may be  suppose to mention they out of kindness or affection but right heir be too  general word and can be put in only to enlarge the estate as word of  limitation for which reason if a fee be devise to one for life and then to his  heir the interest join and he to who the devise be only for life be seize in  fee and therefore freehold and leasehold estate be devise together the  plaintiff wife must take a absolute estate in both and the same word must be  understand in the same sense as to both estate and the word be strong word of  limitation and the case that have be quote do not come up to the present case  the case of peacock and Spooner be great different that be the case of a term  of the provision of the husband assign and settle by he and there be not the  same reason to adjudge the whole interest to vest in the wife as to vest in  the husband if it have be limit to the heir of his body because if a freehold  have be limit in that manner though the wife will have be tenant in tail yet  by the statute h she can not have bar the issue and therefore in that case the  court say they will not assimilate it to the limitation of a real estate and  construe it a estate in tail for then it mosely report er p be out of that  statute she may bar her issue whereas if it be a real estate she can not bar  they and heir of the body do not take bare through the first taker but per  form do though he may bar the estate on a suppose satisfaction for the donor  may be suppose to have a kindness for they though not for heir general and  therefore those word can be put in only to enlarge the estate and the case of  web and web be a late resolution vern Edward web on marriage of his son and  pound portion assign a term to trustee in trust to permit Thomas web to  receive the profit for his life and after his death to permit whether his wife  to receive the profit for her life remainder to the heir of the body of Thomas  and whether during the residue of the term the wife die leave issue it be  adjudge at the roll upon the reason of the case of peacock and Spooner that  the heir of the body shall take as purchaser and that the whole term do not  vest in the father but on a appeal to Lord keeper Harcourt and after search of  precedent it be decree that the whole term vest in the father and that the  heir of the body can not take as purchaser for if the legal estate have be  limit in that manner the father by law must have take the whole and the trust  of a term must be govern by the same rule and Lord Harcourt go upon this  distinction because the term be not limit to the heir of the body of the wife  but to the heir of the body of the husband and if a freehold have be limit in  that manner the husband can dispose of it but not the wife and in all the case  that have be mention the word be heir of the body and no case have be produce  where heir general have be mosely report take to be word of purchase because  it be so uncertain who they be Mr solicitor general be reply it be not deny  but that in the first clause there be sufficient word to pass these estate if  they be not restrain and tie up by the other but it be say that the word real  estate confine they I agree that in a legal sense chattle real be not real  estate and therefore if a man have both freehold land and chattle real in one  place by a devise of all his real estate only the first will pass because they  may satisfy the word but if he have only chattle real there they will pass  because otherwise the word will be void as be resolve in the case of roe and  Bartlet cro can and it be her intention to pass they and the word will carry  they and no answer have be give to our objection that otherwise the word in  buck and Essex must be expunge for at the former hear it be take for grant the  testatrix have no other land in those county Styl bro ab title do n as to the  objection that the testatrix have drop all the other word but real estate in  the limitation over it be strange that in one clause she shall give they for  life in the other absolute but she devise over whatsoever she before intend to  pass as real estate it be absurd they say that the same word shall operate as  word of limitation on the freehold estate and as word of purchase on the  leasehold interest but that arise only from the different nature of the estate  in one case the law unite the estate and though the word be take for word of  limitation the heir take if the tenant in possession do not defeat the estate  but in case of a term the heir can take if the word be take only to increase  the estate and that right heir be word of purchase be further prove because  there come afterward word of limitation to hold to they and their heir so this  be the same thing as if a leasehold estate have be devise to two and after  their decease to their right heir their executor and administrator No such  distinction as have be make between the case of peacock and Spooner and of web  and web be mention in the report of either of those case nor be there any  colour for it the statute of h do not extend to chattle real and though web  and web be a late authority yet it be of less weight than peacock and Spooner  which be determine by the house of lord there be no difference whether the  limitation be to the heir of the body or to the heir general for it be natural  for a man to have a regard and view to the blood and heir of mosely report his  family be they who they will as to freehold land the case be the same whether  the limitation over be in tail or in fee and there be in both case the same  reason for the distinction as to chattle real because if the heir do not take  as purchaser they can take at all Lord chancellor one have term for year as a  security for money in two parish and a estate in fee in another parish devise  all her manor land and real estate in those parish and the question be whether  the term shall pass I agree with the mosely report er p resolution in the case  of roe and Bartlet that where one have a substantive term only in such a place  and devise all his land and real estate in that place the lease will pass but  in this case there be some feesimple land that can pass which make it differ  from the case where nothing can pass but the term but at the time of make her  will the testatrix have only a mortgage and a extent as security not  substantive term and by a devise of all her land in a b and c term as security  only can pass and it can not be her intention to devise these estate by this  clause because she afterward express devise all her mortgage bind credit e and  therefore that devise must extend only to her freehold land but suppose the  leasehold estate pass by this devise the next question be what estate the wife  and the defendant take by it the defendant allow that in the case a free ho if  a estate be limit to one for life remainder to his right heir the lie be will  take by descent but they say that if a term for year be limit in that manner  they will take by purchase in this case then both a freehold and leasehold  estate be limit the same word in the same sentence by that rule must be take  as word of limitation of the freehold and as word of purchase of the leasehold  which it can never be suppose the testatrix intend and therefore the decree  must be affirm vern this decree be affirm in the house of lord on Friday march  that p wms mosely report Monday February the that