bagshaw v spencer November on appeal from the roll devise limitation apparent  legal as use execute hold to be trust from the purpose to be answer by a  precede devise to trustee for payment of debt c question as to whether a  estate for life or in tail Garth v Baldwin Ves sen see per Lord Thurlow c on  this case bro and Fearne count Rem c S c atk Benjamin Ashton that September  devise all his manor land c to five trustee and their heir upon trust that  they or the survivor of they or the heir of the survivor shall out of the land  c by the rend issue and profit or by sale or mortgage of the whole or so much  as shall be necessary raise so much as shall be sufficient for the payment of  debt legacy and funeral expense and then as to one moiety upon trust and to  the use of his nephew Thomas bagshaw for life without impeachment of waste  then to trustee for and during the life of Thomas bagshaw for support of  contingent use but to permit he to receive the profit for life and then to the  heir of his body lawful beget or to be beget and for want of such issue then  to his nephew Benjamin bagshaw for life without impeachment of waste then to  trustee to preserve c in the same manner then to the heir of his body  remainder to his own right heir as to the other moiety to the use vesey senior  of his sister Spencer for life and with like remainder to trustee then to his  nephew John Spencer for life c like remainder to trustee then to the heir of  his body then to his brother in the same manner then to every other son of the  body of mrs Spencer c the testator die Thomas bagshaw die unmarried Benjamin  the second devisee bring a bill against the trustee and all proper party to  have a performance of the trust of the will and the personal estate apply to  payment of debt as far as it will go and such part of the real estate as  necessary for the residue which be heardat the roll November and decree that  so much of the real estate as will be necessary to answer the debt c or the  whole if necessary shall be so Id and if there be no more than will raise the  same there shall be a commission of partition and if the whole the surplus  after the trust perform shall be reinvest in the purchase of land reserve the  consideration how the remainder of the trust estate shall be limit till after  the report in the same term Benjamin the plaintiff vesey senior er p there  suffer a recovery of his moiety of the estate may be the master report state  the debt c that it be for the benefit of all party interest that the whole  estate shall be sell which report be confirm Benjamin bagshaw suffer a  recovery and make a will devise this moiety to his wife in fee make her  executrix and die January the wife bring a supplemental bill in nature of a  bill of revivor for carry the former decree into execution and to have the  benefit of that moiety of the trust estate to which Benjamin bagshaw be  entitle which be hear at the bolls in and decree that Benjamin bagshaw be  entitle to a estate tail in the moiety by the will of Benjamin Ashton vide S c  atk from this last decree wasthe present appeal Lord chancellor have take time  full to consider the case now pronounce his decree the merit depend on the  first will and there be nothing subsequent make a material variation the right  of the party therefore must be take as they be at the death of the first  testator and the determination of the court the same as if Benjamin bagshaw be  now alive and pray a conveyance of the moiety to himself which reduce this  case to two general question upon the will first whether the estate devise to  Benjamin bagshaw be a trust or legal estate that be a use execute by the  statute or a mere trust in equity second suppose it a trust in equity whether  it be a estate tail to he or a estate for life only with vesey senior  contingent remainder over to all the issue of his body successive as to the  first I be of opinion that this devise of the moiety be mere a trust in equity  the first devise be to the trustee and their heir carry the whole fee in point  of law part of the trust be to sell the whole or a sufficient part for the  payment of debt and legacy which will carry a fee by construction although  choose word be omit out of the devise as in shaw v weigh Eq ab then the  trustee may sell the inheritance of the whole by virtue of their estate not of  their power they must have a fee in the whole otherwise as it be uncertain  what they may sell no purchaser can be safe which differ this from Cordals  case Cr e cite in   a and carter v Barnardiston wm and Popham and Bamfield for  and Randal v Bookey Prec Chan in all of which case there be neither heir nor  other word of limitation nor a express trust to sell be a mere chattel  interest like a elegit to hold till debt be pay the only doubt I have be on  the case of Lord say and seal v lad Jones vin ab Eq can ab and bro p c octavo  edit November before Lord king and affirm in the house of lord in march as to  this point but on examination that case differ a material part and take  together all the clause of the will it amount only to a I devise of trustee  and their heir during the life of and only a estate pur auter vie upon which a  legal remainder may be proper limit and so hold but in the present case the  whole fee be in the trustee a remainder of the legal estate in this moiety can  not be limit to Benjamin bagshaw it have be argue that it may be good by  executory devise but can Benjamin bagshaw thereby take a legal estate therein  he can not or do not if he may and his devisee can claim it from he for it be  too remote be after all debt indefinite be pay which may in point of time  exceed a life or life in be or any other time allow by law but a clear answer  be because the recovery by Benjamin bagshaw be before the debt pay and  consequent while the fee remain in the trustee and he can not make a good  tenant to the prcecipe then suppose it a good devise in law to Benjamin  bagshaw this will prevent its pass by his will for whatever make the recovery  void equal defeat the plaintiff title whatever be the construction of the will  and so vest in the defendant heir at law of Benjamin Ashton which make it  necessary for the plaintiff to admit that all the subsequent devise be trust  in equity the second and main question whether it be a equitable estate tail  or for life only with contingent remainder to the issue depend on the  construction of the word heir of the body lawful c vesey senior as they stand  in the will whether as word of limitation or purchase for if of limitation he  be tenant in tail and the recovery be good in equity if of purchase he be  tenant for life only and it be void to determine which three thing must be  consider the intent of the testator in the devise whether that intent be  consistent with and can take effect accord to the general rule of law and  equity and whether there be any particular settle rule or vesey senior er p  determination of the court stand in the way of and prevent the intent from  take effect under which last head I propose to consider the distinction  between trust execute and executory and the objection urge from thence in  favour of the plaintiff as to the intent it be clear the first motive be to  make a strict settlement among all his nephew the son of his sister to all the  nephew in be and proper to be make tenants for life he express devise it so  and in the same word he have pen the devise of the other moiety to his sister  mrs Spencer who be then live concern who no doubt she be but tenant for life  add to all without impeachment of waste which though often hold not sufficient  to prevent the operation of law arise from the subsequent word yet it be a  mark of the intent to give a estate that will be punishable for waste if not  so exempt then to trustee to preserve c during the life of Benjamin bagshaw  which be make the great point for the defendant and speak first that he intend  to give his several nephew and particular Benjamin such estate only as may be  forfeiter the estate to the trustee be after the determination of his estate  for rife which can be determine but two way by expiration of the life or  forfeiture the former he can not mean the remainder to the trustee be give  only during the life of Benjamin therefore he must mean the latter the next  thing be that there be some contingent use or remainder to be preserve and  throughout the devise there be none unless the limitation to the heir of  though body of the several nephew be such the question then upon the intent be  whether these circumstance be not as strong to restrain this to a devise for  life only as if express by negative word as non aliter which in Ven be admit  by Lord hale to make it but a estate for life and in backhouse v well Eq ab  king h whether the estate for life be not absorb in the subsequent limitation  so here from the testator declare his meaning as to waste forfeiture and it be  follow by contingent remainder it amount to the same as if he have express  declare his meaning that it shall be for life only with contingent remainder  to the heir of his body the plaintiff counsel be under great difficulty to  frame a argument show the intent to be in their favour and only rely on this  that the testator have show by the will that he understand the difference  between word of limitation vesey senior and word of purchase proper to make a  contingent remainder and therefore that in the devise of the other moiety  where he give it to those afterborn son of his sister to who he intend a  estate tail it appear he know that the word heir of the body will create a  estate tail but the difference of the pen import the contrary and strengthen  the evidence of the intent on the other side show that as to those bear the  testator know he can make they tenant for life only with contingent remainder  c but not those unborn and with this view therefore he leave out the word for  and during their natural life and without of waste and no clause to preserve  contingent remainder which be that in the first he mean a mere estate for life  and to use heir of the body as of purchase and in the other as word of  inheritance and limitation because the law will not suffer a contingency after  a contingency then admit this to be the intent the next question be whether it  be consistent with and can take effect accord to the general rule of law or  equity   a and here the plaintiff place her great strength for it be say that  the law will not suffer its rule to be contradict but will supesede the intent  and reduce the gift to its own operation such as it will allow and that it be  a clear rule ever since Shelleys case that wherever the ancestor take a  freehold and by the same gift there be a limitation to his heir or heir of his  body they be word of limitation not purchase and the estate unite and give a  inheritance I admit the general principle that the law will not suffer devise  contrary to its rule but it be misapply here the true application be to the  nature and operation of the estate intend to be create and not to the  construction of the word for though sometime it may be apply to some technical  word to which the law have fix a certain sense yet even then it have be  unskilful apply and without proper distinction the law will not suffer a  perpetuity or the hold in abeyance in a will or deed nor a fee upon a fee nor  a chattel to heir and the reason be because it will change the law and by act  of private person vary the rule of property it arise therefore from want of  power in the testator but in the present case there be no want of power there  be no doubt but the testator may devise for life with contingent remainder as  the defendant contend the vesey senior er p only objection be that he have use  improper word which the law will not allow for that although the intent be  plain but be not this hard to say and repugnant to the first fundamental rule  in explain will that the intent shall govern the construction the testator be  presume to be weak council and therefore though he use unapt and barbarous  word the law will so frame and mould they as to make proper sense to serve the  intent as in Borastons case   and man case   which have be constant adhere to  since and can be do here without construe vesey senior heir of the body as  word of purchase and description however it be still urge that the law in  Shelley case and in bret v Rigden blow have fix the sense of those word to  word of limitation but that be so far from hold that there be several case  even in law in which they be hold as well word of purchase as in archer case    the word of limitation add there and in all those case be only demonstration  of the intent of the testator in use the first word so in more and in case  cite in king v mell and James v Richardson Ven and long v Beaumont in the  house of lord bro p c oct edit and bro p c fol edit may but there be still a  strong authority where even in the case of a deed in construe which the same  latitude be not allow as in will they be take as word of purchase to serve the  intent videlicet Lisle v grey which through mistake be in Jones say to be  reverse whereas from the register it appear to have be affirm pollexfen ray  lev to this it be say there be several other word in that case which I allow  but still it be a authority that they may at law and upon a deed be construe  as word of purchase if the intent require it the other word be only a sign of  the intent and it be a unanswerable argument that if some word show the intent  may turn it into word of purchase other may there be no magic in any  particular word to this be object a considerable authority to prove that the  interposition of trustee to preserve contingent remainder between the first  taker and the heir of his body be not sufficient to turn they into word of  purchase I e colson v colson in b b may note in Douglas Lord Mansfield say  Lord Hardwicke tell he that he be dissatisfy with this decision but though it  be not now to be shake stram atk which be a devise by Robert Bromley to his  grandson Robert colson and his assign for his natural life of all his  reversionary right and interest expectant on the death of his sister and after  the determination thereof to trustee and their heir during his life to support  the contingent remainder after name from be destroy but to suffer he to  receive the rend for life and after his death to the heir of his body lawful  beget or to be beget in default of such issue to another grandson in like  manner with the same trust to preserve c and then to his right heir upon a  question whether Robert colson take a estate tail or for life all the judge of  b b certify that the interposition atk of trustee make he take a estate for  life not merge by the devise to the heir of his body but that thereby a estate  tail in remainder vest in he which be say to be a clear authority that upon  that will the insert a limitation to trustee to preserve c be not sufficient  to change the sense of heir for the body into word of purchase even though  there be no other contingent remainder in the will but it differ from the  present here be a clause of without impeachment of waste although that may be  think to deserve but little weight but the great difference be that this be a  devise of a trust in equity that of a mere legal estate the word of which must  be take as they stand accord to the strict legal determination and the judge  may have think they can not vesey senior take into consideration the trust but  only the legal estate and how that separate take can operate but here all the  limitation be of a trust the construction and direction whereof be the proper  subject of the jurisdiction of this court which be bind to decree accord to  the intent as be determine by the master of the roll with which I agree and  that as this be a trust consequent a great latitude must be allow to comply  with the intent since it be to be settle and reduce into a conveyance by this  court last the opinion there give furnish a new light which do not appear at  the last decree at the roll the judge hold that the interposition of trustee  prevent the estate for life from be unite with and merge in the inheritance  which afford a decisive argument that if this case be law supplement the court  must in direct a conveyance depart from the word of the will the answer give  to this difference between the case be that limitation of trust and legal  estate be by the same rule and the construction the same in both otherwise  there will be vesey senior er p different rule of property accord to Lord  nottingham concession in the duke of Norfolk case which I allow and also his  principle but let these concession be right understand he do not say that the  construction of the word must be exact the same in both case or that a court  of equity can expound the word more liberal when direct a conveyance to comply  with the intention his reason there be plain apply to the measure of the  limitation that they can not be carry further in one case than the other in  limitation of a term which appear from the word follow that a limitation of  the remainder of a term after a estate tail therein be void to this his other  argument that otherwise there will be different rule of property be proper  apply for the measure of the limitation do essential concern the rule of  property and how near we may approach a perpetuity but not how far we may go  to find out the true meaning of the testator free from the technical use of  the word upon this reason be several resolution Papillon v voice Eq ab wms by  sir Joseph Jekyl with who Lord king concur that the intent be plain to give a  estate for life only with contingent remainder of the inheritance upon the  clause appoint trustee to preserve contingent remainder but hold it a estate  tail by force of the technical word heir of the body as to the devise of the  land though he agree as to the money to be lie out in land with sir Joseph  Jekyl who hold that the intent govern in both case but it be observable that  it be not necessary for Lord king to give that opinion it be extrajudicial  because by the supplemental bill the marriage article be admit into the cause  by which it appear the plaintiff be clear entitle to a estate tail in the land  and that it be not in his father power to devise it but upon this there be  something remarkable that the cause be hear on Saturday Lord king do not  pronounce his decree till Monday vesey senior when he say he have look into  Lisle v grey lev and Lord raym which be very strong and seem to be less clear  in his opinion but as the supplemental bill have bring a new title for the  plaintiff he do not give it further consideration and it be observable that he  take care to express that the direction for reverse that part of sir Joseph  Jekyls decree relate to the write be find on the supplemental bill which look  as if he want to avoid that point however since the case of colson v colson I  will urge that of Papillon v voice no further than as a authority that a trust  estate by will so pen ought to receive such a construction and the court to  direct conveyance accord in which the court be clear warrant by former case as  in Leonard v earl of Sussex for upon which case I only observe that if the  devise have be of a legal estate with such clause not to alien the son must  have be tenant in tail and there will be no operation from that clause and yet  upon a trust in equity it will turn they into tenant for life and it be  difficult to show why the devise here to trustee to preserve contingent  remainder shall not have the same construction another great authority be on  sergeant maynard will sir John Hobart v earl of Stamford vin ab Fearne count  Rem and bro p c oct edit the word of which be with immediate remainder there  follow negative word and to no other use or purpose it be first to be observe  hat both this court and the house of lord construe heir male of the body in  the sense of first and every other son second take the word as in a conveyance  by deed the limitation to the heir male of the body of such first son be void  in law the limitation to the first son be for ninetynine year only not a  freehold consequent it can not unite with the limitation to the heir male of  the body within the rule of Shelleys case and by contingent remainder it can  not be good because there be no freehold to support it and yet the court make  good the whole by insert trustee to preserve contingent remainder although the  private act of parliament have not insert it three the testator have express  insert in the will a clause to preserve remainder after the limitation for  life to and therefore it may be argue that where he as able a lawyer as  perhaps Westminster hall have see have omit it he do not intend it the will  conclude also negative which though a more forcible objection than what be  draw here from the different pen of the devise in the other moiety to the  afterborn son of mrs Spencer yet do not prevail against the intent to make a  strict settlement that case be precedent to Papillon v voice but there be many  subsequent in Ashton v Ashton on a rehear see it from Reg lib in supplement p  before sir Joseph Jekyl Nov Joseph Ashton devise pound south sea stock and  pound to trustee to sell and lie out in the purchase of land to convey to  George vesey senior er p Joseph Ashton for life and afterward to the issue of  his body in default of such issue then over George Joseph Ashton bring a bill  for performance the question be whether he have a estate for life or in tail  it be insist for he that have it be vesey senior devise of land he will be  tenant in tail and there shall be the same construction but the court hold it  a estate for life only of the land to be purchase which determination stand  unappealed from the word of the limitation there be issue of the body not heir  as here but that be hold to be as strict as the other and equal give a estate  tail in land legal devise in wither v Algood Reg lib b fol July from the  register I a seize in fee of groundrents and possess of term for year in house  convey to trustee to hold such as be freehold to the use of the trustee and  their heir the leasehold to the trustee their executor and administrator in  trust to apply the rend and benefit of redemption to Hannah wither for life  and afterward to the heir of her body and of I and m their heir c after the  testator death Hannah wither bring a bill for redemption and performance of  the trust upon a question whether she take a estate for life or in tail in her  share by this trust Lord Talbot hold it only a estate for life decree a  redemption for her as tenant for life the word be heir of the body and yet be  hold word of purchase it have be say that the reason be because join with  other who be to take by purchase but that amount only to this that a plain  indication of the testator intent will change word of limitation into word of  purchase this argument be not conclusive or of necessity to make they word of  purchase in a manuscript case which I have see of it Lord Talbot say the rule  of law be not so strict as to control the intent where it be plain in lady  glenorchy v bosvile case in Tal Lord Talbot hold that the plaintiff take only  a estate for life with remainder over but notwithstanding hold that accord to  king v mell Ven issue be as proper a word of limitation as heir of the body  and that if it have be a devise of a legal estate the plaintiff will be tenant  in tail but be a trust he be at liberty to make a more liberal construction to  comply with the intent and the argument that the testator know the difference  and where it be proper to insert trustee to preserve contingent remainder  furnish a strong objection than be draw here from the limitation of the other  moiety to the afterborn son of mrs Spencer and yet do not prevail to support  the legal construction of the word of the will against the intention as to the  three and last consideration on the part of the plaintiff be object two rule  in the way of the defendant first that though in decree a execution of  marriage article for valuable consideration the court will make such  construction as will render the contract effectual yet on a will under which  all claim as volunteer the word devise a trust estate must be take as they be  and the court can depart from they second that even in a will there be a  difference between trust execute and executory in the latter the court use a  great latitude to answer the intent vesey senior in support of the first  objection it cite a lead authority bale v Coleman in the register lib a fol  for wms it be true there be a distinction between the construction of marriage  article and of trust in a will brown but it be admit the intent ought to  prevail in both therefore I have not cite any case arise from marriage article  but I deny the proposition that because under a will all party claim voluntary  the word of the will devise a trust estate must be take as they be and that  the court can depart from they there be several authority to the contrary and  so it must be of necessity because if the court be when bind to convey oblige  to use the same word it will have a different operation as for instance the  word issue in a will be general and proper a word of limitation but in a deed  a word of purchase and must operate accord consequent the court must depart  from the word to comply with the intention upon the whole frame of the will to  examine bale v Coleman particular Lord cowpers decree be reverse as to part by  Lord Harcourt from who reason it have n argue for the plaintiff more than from  the judgement itself the first part of his declaration distinguish it from  marriage article be right but have nothing to do here and the case there put  by he be of article limit the estate to husband and wife and the heir male of  their body which will be decree here in strict settlement it be true there be  no case where it be so hold on a will nor ever will be where no more than be  there state nor any intent to preserve contingent remainder insert the vesey  senior er p next clause of his declaration be apply to the devise of a legal  estate the next relate direct to the devise of a trust and I own go a great  way that the same word in a will which at law will create a estate tail ought  to be construe by this court when they fall under a trust and be to be carry  into further execution as in the present case so as to carry a equitable  entail the proposition include all trust as well executory as execute the word  be which be to be carry into further execution and in say that the court must  adhere to the word of the will notwithstanding the trust be to be carry into  further execution I fear he be not so full inform of precedent all the  authority I have cite be direct contrary thereto at the conclusion of the  general argument of this declaration be a very remarkable clause that admit  the debt pay the same construction ought to be as if original no trust but I  can see bow that subsequent fact can vary the construction of the will but if  it can it be different from the present the estate not be sell nor trust  perform I dwell the long on this declaration as it have be much rely on and  must add a circumstance within my own private knowledge that Lord Harcourt  after he be out of office express himself strong against declare general  reason in this court which may affect other case here to which I wish he vesey  senior have adhere in this case but to add force to the precedent it be say  this case be again reheard by Lord Cowper who be convince and approve of Lord  harcourt reason but that if a mistake and second rehearings be contrary to the  general rule of this court therefore it must only have be say obiter and after  all the reversal of that decree may be maintain without the aid of that detail  of general reason and plain differ from the present case as to the second  objection Ves sen of the difference between trust execute and executory no one  be more unwilling than I be quietan to move but this distinction never have be  establish by any direct resolution though say arquendo and be it to be examine  to the bottom it may sound strange how it shall be establish all trust in  notion of law be executory and to be carry into execution here by subpoena  accord to the old book at commonlaw every use be a trust the statute conjoin  the legal estate thereto and therefore a trust execute be in strictness a  legal estate so that to bring a case within the jurisdiction of chancery it  must be executory the first essential part therefore of a trust be that the  trustee be to convey the estate some time or other whether the testator have  direct it or not which every testator be presume to know therefore a doubt may  be reasonable make how there can be a difference whether the testator have in  word direct la conveyance or not since the court take notice that the testator  can not intend it shall always remain in trustee I have say this may be doubt  of and do not choose to carry it further out of deference to those great man  who have rely on it I have great deference for Lord Talbot opinion but take  his decree in lady glenorchy case Cas t Talb to be so right as not to want the  aid of the distinction there make Tal but how far do it amount to a positive  opinion to bind he the word be that in trust execute or immediate devise it  ought to be the same in law or equity because the testator do not suppose  there will be any other conveyance and therefore no other conveyance wouldbe  presume but I have show that some time or other a conveyance must be make  which the testator be presume to know if by the word act execute be there mean  deed in the testator life it be proper but if only a devise to trustee upon  immediate trust without express direct a conveyance beg leave to doubt of it  and whether the court will not be bind to direct a conveyance in strict  settlement as it be there in Leonard v Lord Sussex but it appear in the end  that Lord Talbot form no fix opinion to bind himself but only a inclination if  it be a immediate devise and it appear that he afterward relax from it for in  wither v Algood Reg lib b fol he make the same construction upon a trust in a  deed wherein be no direction of conveyance nor any thing to distinguish it  from a trust execute vesey senior I have now go through the general reason but  one thing in this case be particular and decisive I lie it down at first and  in this agree with the master of the roll that nothing since the death of the  testator can vary the construction of the will or the right of the party but e  determination must be the same as if Benjamin bagshaw be now alive and come to  the court for a decree in which case the surplus of the money arise by the  sale must have be decree to be lie out in land one moiety to the use of  Benjamin bagshaw remainder over then the ques vesey senior er p cion will have  arise whether a direction to preserve contingent remainder shall be insert or  not if to be insert then the next limitation of the use must have be to the  first c son of Benjamin bagshaw in tail male remainder to the daughter in  common and not in the very word of the will because it will be absurd and  contradictory to preserve contingent remainder where there be none as in  Papillon v voice p wms where the word of Lord king be that if the conveyance  shall be in the word of the will it will be blunder consider then whether it  ought to have be leave out for then the conveyance must have be to Benjamin  bagshaw for life without impeachment of waste and after to the heir of his  body with other remainder over which will give a immediate estate tail in  possession in one or other of these the conveyance must be and take which you  will the court must have depart from the word the question then be whether the  court ought to do that to comply with the intention or to contradict it and I  hold with Lord hale in Pybus v Mitford Ven that we ought to serve the intent  if we can as the best expositor we can go b but it be object that still you  must adhere to that which will be the legal operation of the word of the  limitation of a trust when reduce into a commonlaw conveyance but I deny that  general proposition which I have disprove from reason and authority but for  argument sake admit it the court can not have do it here by leave out trustee  to preserve c without convey to Benjamin bagshaw a different legal estate from  that which the word of the will will have carry if it have be a legal devise  of land in colson v colson it be a devise of a legal estate and the word near  the same and it be hold because of the interposition of the remainder to  trustee that it be a estate for life not merge in the devise to the heir of  the body but a estate tail vest in remainder the consequence of that opinion  if right be that if the court in frame a conveyance in the present case have  leave out the devise to trustee to preserve c the court will have give not  only a different equitable but also a different legal estate from what the  word in the will will have give for by leave it out Benjamin bagshaw will have  a immediate estate tail in possession but in the other case a estate for life  forfeitable so that if the court shall direct a conveyance of this moiety to  his use for life and after to the heir of his body they will not vesey senior  only depart from the word of the will but also from the legal effect thereof  and contradict the intent which I can think myself warrant to do so much  therefore of the last decree by the master of the roll as declare it a estate  tail to Benjamin bagshaw must be reverse and instead thereof as all the  particular limitation be by the event determine one moiety of the clear  surplus by sale of the trust estate be pay to the defendant Spencer heir at  law of Benjamin Ashton Reg lib a fol note it shall be remember that Lord  Thurlow c say he be not satisfy with the reason of this determination see bro  if testator intention appear that he mean the word heir in a legal sense the  rule in Shelleys case must take place though there shall be express word that  the heir shall take by purchase or that devisee shall have only a estate for  life but the rule be not applicable where testator use the word in any other  sense brown Mr Fearne however observe count Rem that this distinction seem to  have have its weight as well in case precedent to this as in those subsequent  and he short afterward enter into the discussion methodical and very full p  seq support the former part of his observation not only by the case of the  earl of Stamford v sir John Hobart Leonard v earl of Sussex Papillon v voice  and glenorchy v bosvile but by the authority of Lord Hardwicke himself in  Robert v Dixwell atk and Baskerville v Baskerville atk see therefore Fearne  where above and in particular c as to subsequent case Mr f refer to wright v  Pearson Amb but more full report as to Lord keeper henley argument Fearne  count Rem c and Jones v Morgan bro it shall be observe that although Mr f seem  to doubt the propriety of the decision itself in wright v Pearson relative to  other point he nevertheless lie great weight on the Lord keeper position on  the above distinction vide p vide also Garth v Baldwin post d Vol and Lord  Thurlow c observation upon it bro it seem upon the whole that a trust estate  will in such case follow the nature of a vesey senior er p legal estate unless  a plain intention to the contrary be to be collect from the instrument itself  this case be determine agreeable to testator intention but contrary to the  rule of law lie down in Shelleys case videlicet where the estate be give to  the ancestor and also in any part of the same instrument to the heir or heir  of the body the estate unite which rule be recognize afterward by Lord  Hardwicke in Garth and Baldwin Ves sen and by Lord Thurlow in Jones and Morgan  brown