case Alcock versus sparhawk maii Eq can ab pl S c Ant can I S by will devise  his land to his brother who be his heir at law in fee give legacy and make his  brother executor desire he to see his will perform the real estate be charge  with the legacy James sparhawk the defendant brother seize of freehold and  copyhold and design to have intermarry with the plaintiff in case he have live  by will April draw by the defendant his brother by his direction devise as  follow as touch my worldly good I dispose thereof as follow I give and  bequeathe to John sparhawk be the defendant my love brother all my house and  land lie and be in Feesingfield and Vernon chancery case Stradbrook and all my  house in Theberton to he and his heir and after other legacy devise thus item  I give to mrs Susanna Alcock the plaintiff the sum of two hundred pound to be  pay by my executor within five year after my decease item I give my stonering  unto mrs Susanna Alcock and I do nominate and appoint my love brother John  sparhawk to be my sole executor of this my last will and testament desire he  to see the same perform to perform the same r l accord to the trust and  confidence that I repose in he and the testator propose the legacy shall be  pay in three year the defendant desire five year time for the do of it the  personal estate prove deficient the question be whether the real estate be  liable per cur the land be subject and liable even on the face of the will  testator need not have devise the land to his brother for he be his heir at  law unless he intend his brother shall take they subject to his legacy but he  be devisee and executor and be desire to see the will perform and therefore a  much strong case than that of cloudesley all creditor of dean against Pelham  vol case which be confirm upon a appeal to the lord the party go into evidence  and it be prove in the cause that at the time of make the will the defendant  ask the testator how the pound give to the plaintiff shall be raise and when  aid and that the testator answer out of his land within three year but the  defendant declare that it can not be raise in that time that the testator  thereupon reply then take five year by which time he be sure it may be do and  the plaintiff will be of age and the testator ask the defendant if he be  satisfy and content who answer he be Reg lib a fol the defendant have be admit  to the copyhold land as brother and heir at law to the testator et vide Elliot  v Hancock ante p note this decree be also confirm upon a bill of review and  afterward upon a appeal to the lord in parliament that February journal house  of lord vol enter by the name of sparhawk v alcocke vide vin ab title charge  Davis v gardener p wms and case there cite and Parker v Fearnley S and S