atkins case hayward v Stillingfleet Michaelmas term W h by will give pound to  his daughter Frances and pound between two other daughter and then devise his  land in trust for a term of year with a power to raise a less term upon trust  that if his wife shall within a year pay off the pound then the land to go to  her for life and after her death to W h his son and his heir male and female  and for want of such issue to he and his heir for ever this be a conditional  limitation in the wife take place as a executory devise and the freehold  descend to the son as heir at law to the testator till the year be elapse or  his wife have perform the condition as a part of the inheritance indispose of  and by this devise the son have a good estate tail in the inheritance  expectant on the determination of the term of year Walter Hayward senior by  his will give the sum of pound between his three daughter Payable within year  after his decease in manner therein mention and then devise his land in trust  for a term of year with a power to raise a less term upon this special trust  and confidence that if his wife shall within year after his decease pay off or  secure to be pay the say sum of pound to the say trustee for the benefit of  his say daughter then he give all his land to his wife for her life and after  her death to Walter Hayward his son and his heir male and female and for want  of such issue to testator own heir for ever the say term to wait on the  inheritance and the trustee to convey over as aforesaid and the fortune of  each daughter upon her death before marriage to go to the survivor the wife do  not pay the money and some year ago a bill be bring against Walter Hayward the  father of the plaintiff for the pound and a decree be make for the sale and  after the payment of atkins er p this sum the residue be to be lie out for the  benefit of Walter Hayward then a infant and father to the plaintiff the estate  be accord sell to mrs Stillingfleet for pound the pound first pay off and the  residue apply accord to the decree the plaintiff father when he come of age in  consideration of his confirm the purchase to mrs Stillingfleet and convey the  remainder of the term to prevent the merge thereof to trustee appoint by her  receive the pound be the residue after the sum of pound raise and pay to the  daughter mrs Stilling be it devise the estate to the defendant in fee the  present b be bring by the grandson of the testator and heir at law of the son  for the reversion of the inheritance after the term for year and for a account  of what timber have be cut down and for a injunction to stay waste for the  future and for the delivery of the deed and write and for a assignment of the  say term against the defendant the devisee of the purchaser of term and  inheritance from the plaintiff father the son of the testator there be no fine  levy to the purchaser by Walter Hayward but there be a covenant to levy a fine  note the conveyance of the reversion be for pound over and above the pound the  purchase money of the term and she have notice at the time of the purchase of  the estate tail Mr brown for the plaintiff insist that this be not such a  atkins precedent condition with respect to the estate tail as must be perform  by the tenant in tail before he can be entitle but at most a charge only upon  the estate that the testator in consequence of his wife S pay the pound give  her a estate for life and if she do not pay it can never intend that the son  shall not have the estate upon pay this pound a term of year create with a  remainder over if the tenant for life pay not the pound be a refusal of this  estate and it shall not go over to the remainder man the trustee have a power  to raise it by sale or mortgage of all or part of the estate and after the  money be raise they be to assign over the trust either at the request of the  wife or the son if the wife shall not request then at the request of the son  which show plain that the father have provide or the contingency of the mother  not pay the intention of the testator be that the money shall be raise at all  event and to make a complete settlement of his whole estate it be not pretend  by the defendant that there have be a fine levy or recovery suffer of this  estate but only a covenant by the plaintiff father who sell it to levy a fine  and no covenant by tenant in tail can bind the issue in tail so Stapleton v  Stapleton ante saville case Ves Ves but where a tenant in tail make a  conveyance and covenant for further assurance and then become a bankrupt such  covenant be hold to bind the land in the hand of the assignee Edward v  Applebee bro Charles Rep in note see Sutton v stone post vol Mr attorney  general for the defendant I have often hear it lie down here that this court  will not entertain a bill where the demand be under pound and the plaintiff  own witness do not pretend to say that the timber cut down amount to more than  S in value the father of the plaintiff convey the estate to a fair and good  fide purchaser and therefore the plaintiff who be a mere volunteer claim under  a person who may have bar he by a fine shall not overturn a purchase for a  valuable consideration the whole inheritance of the estate be sell for pound  can it be say then that the wife have any benefit from a estate for life  Chargeable with pound where the whole inheritance be worth but pound so that  it appear plain to be the intention of the testator to make a provision for  his daughter without regard any of the limitation of this estate he then call  for the deed in which the plaintiff father convey the estate to mrs  Stillingfleet the purchaser and read out of it the covenant on the part of the  seller to levy a fine in the term follow he conclude with say that the estate  for life to the wife and all the estate concomitant upon it depend on a  contingency the payment of the pound and as that be not pay the limitation can  be say to have take place atkins Lord chancellor the only question be upon the  title and when that be determine the decree as to the matter pray by the bill  will follow of course and it depend upon the limitation in the will of old  Walter Hayward he plain declare his intention in the beginning to dispose of  his whole estate at all event after this he give to his three daughter pound  to be pay out of his land in cranbourn and then a point the manner of raise it  and say if his wife pay the pound within four year after his decease then he  give her a estate for life out of the inheritance of his land if it be a  condition it be insist it be annex to the term for year and that he intend to  give his wife a estate in the term but I think this can be so construe atkins  er p contrary to the word for though it be awkward express yet he mean to  carve a estate for life out of the inheritance of the estate and not out of  the term the question be whether the word of payment amount to a condition or  a limitation and whether a condition precedent or subsequent now I think they  can create a condition subsequent for the heir at law to who a estate tail be  after give must be the person to enter and defeat the condition because a  estate of freehold can cease without a entry for a breach of the condition and  here have be no entry and this will destroy the whole intention of the will  which will not at all serve the plaintiff nor can it be a condition precedent  for as I say before if there be a breach no body can take advantage of it but  the heir at law for a devisee can and such a construction will defeat she  estate tail see Fearne et seq that Edit and wherever there be a limitation  with remainder over make in the word of a condition which will be construe as  a condition if they can effect it ought to be construe as a limitation if they  can I be of opinion that this be a conditional limitation in the wife take  place as a executory devise for it can be a contingent remainder for that can  never depend upon a estate for year but must have a freehold to support it and  though this be a executory devise to the wife which never take effect yet the  estate tail to the son be well limit and take place the principle that a  remainder over shall take effect notwithstanding the condition annex to the  precede estate and on which the remainder be limit shall never arise or be  perform be recognize by many case scattergood v edge salk Jones v Westcomb Eq  ab Hopkins v Hopkins can tempt Talb Andrews v Fulham stram Ves S c will S c  burr S c Gulliver v wicket will stram S c Ves S c Wig v Wig ante fonnereau v  fonnereau post vol Avelin v ware Ves Bradford v Foley Doug Statham v bell Cowp  Horton v Whittaker durn east vide do v Brabant bro Charles Rep the ease of  scattergood and edge salk be in point this be a executory devise the freehold  descend to the son as heir at law to the testator till the four year be elapse  or his wife have perform the condition as a part of the inheritance undisposed  of so pay case cro Elizabeth gore v gore p W Hopkins v Hopkins can tempt Talb  Wig v Wig ante trevanion v Vivian Ves bullock v stone Ves see smith v Newport  post vol and where a estate vest by descent it can never divest again it have  be insist upon for the defendant that this be a very hard case against he who  claim under a purchaser for valuable consideration but if it be a purchase of  a estate with notice of the title it take off from the hardship atkins it have  be object too that the plaintiff come too early but though he can enter during  the term yet he may apply to this court to preserve the inheritance a  surrender of the term will not be proper because it be not mere in the nature  of a security but a absolute power in the trustee to sell the estate for raise  the daughter portion upon the whole I think by this devise the son have a good  estate tail in the inheritance expectant on the determination of the term of  year therefore his lordship decree a perpetual injunction to stay waste and  the deed and write that concern the plaintiff title to the inheritance to be  secure for his benefit except the assignment of the say term of year his  lordship also decree that the plaintiff be entitle to the inheritance  expectant on the say term Reg lib a fol and give no cost on either side atkins  er p