case Bateman against roach if a testator devise land in trust for his nephew a  and for his niece b and the child of the say b by her husband to receive the  profit when they come of age and also bequeathe money for the use of the say  child at their respective age of twentyone and afterward make a codicil  confirm those bequest all the child of b not only those she have at the time  the will be make but those she may afterward have take a estate in fee in the  land as tenant in common and those who die have a equal right with those who  live in the money bequeathe S c Eq Abr the testator be seize in fee devise his  land to trustee and their heir in trust for his nephew John Hatheway and for  his niece Sarah Bateman for their life remainder to the child of the say John  and to the child of the say Sarah by her then husband Bateman in trust that  they shall have and receive the profit thereof when they come of age modern  report the say John and Sarah have each of they a child when this will be make  but the child of John die and mary the now plaintiff who be the child of Sarah  Bateman survive the testator have likewise devise four hundred pound to his  say trustee to the use of the say child at their respective age of twentyone  year he afterward make a codicil by which he change one of the trustee in his  will a see Atcherly v Vernon ante a and confirm all the devise therein and at  that time Sarah have two other child who be since dead now the representative  of the dead child claim a share of the real estate and a distribution of the  four hundred pound the plaintiff exhibit her bill and it be insist for her  that this devise be per word de prsenti none but the child bear at the time of  the make the will can take like the resolution in wild case b   b which be a  devise of land to the husband and wife and to the child of their body it be  resolve that if they have any child at the time of the make the will they have  only a estate for life but if they have none at that time then those child who  shall be afterward bear will have a estate of inheritance in tail but on the  other side it be insist for the defendant that though there be but one child  at the make the will yet Sarah the mother of that child have two more at the  make the codicil they be entitle to take by virtue of the will which be  confirm by the codicil for the devise be per word in going to be and the legal  interest be in the trustee the court be of opinion that since Sarah have but  one child when the will be make the testator can never intend it to be a  devise in prsenti so that no other shall take but that child but rather as a  future devise because it be to the child of Sarah Bateman by her husband and  it be very probable that if he have intend it for the plaintiff mary who be  the only child at the time of make the will he will have take notice of it in  the codicil when there be two other child to share with her and though the  expression as to the profit videlicet that they shall have and receive all the  rest of the profit after legacy pay when they come of age yet they have a  right of it in their minority at least to so much thereof as may be sufficient  for their support and maintenance c Collins v Metcalf vern Atkins v Hiscox atk  van v clarke atk Walcott v hall brown c c goss v Nelson burr c modern report  upon the whole the court be of opinion that these child take a estate in fee  as tenant in common and as to the four hundred pound devise to they that they  who die have a equal right with the plaintiff mary who survive for it be a  stand rule in this court that where a portion or legacy be to be pay out of a  estate in land at such a time or at such a age there in favour of the heir at  law if the legatee die before the day the legacy or portion be sink and go a  smith v smith vern Jennings v look Peer wms bare v brown Chan case carter v  Bletsoe vern prowse v Abington atk van v clarke atk duke of chandos v Talbot  Peer wms Gordon v reins Peer wms Gawler v Strandwich brown c c Harrison v  Naylor brown c c a but modern report er p it be otherwise if the legacy be to  be pay out of the personal estate as in the principal case for there it vest  immediate b Burdet v young ante river v Derby vern Cooper v Scott Peer wms  Wilson v Spencer Peer wms Tunstal v Brachen brown c c notorious facts  hinchinbroke v Seymour brown c c b and not to be divest though the legatee die  before the day appoint for the payment therefore it be decree that the trustee  shall account for the distributive share of the two child who die out of the  say four hundred pound and also for their share of the profit of the land from  the death of their mother to the time of their death and that they shall have  all reasonable allowance and leave to apply to the court at any time when they  shall find it necessary so to do