case attorneygeneral vers young and other whatever a trustee do to prevent the  intention of his testator be a breach of trust and ought to be set aside p wms  Eq Abr pl bro p c SC fort fitzg Mod this be a information by the  attorneygeneral ex relation of sir Thomas Hanmer and other set forth that John  Sutton by will date the day of July take notice that he be seize of the  chequerinn in the parish of saint Andrew Holburn and that he have a mortgage  upon a farm call Cooper farm in the parish of Brockley and Whepstead in the  county of Suffolk for by indenture of of which he afterward purchase the  inheritance in the name of his brother Thomas Sutton and the conveyance be  execute to Thomas Sutton and his heir in trust for himself in fee appoint that  all his estate freehold and copyhold his lease chattel and personal estate be  subject to the payment of his debt and also charge with the annuity and legacy  devise c as afterward be express then he direct his nephew Thomas Sutton son  and heir of his brother Thomas Sutton to convey the say term to his trustee  after name their heir and assign for ever upon the several use trust and  purpose aftermentioned which if he refuse to do or to declare the trust  thereof by some deed c in such manner as his trustee in his will name shall  reasonable think fit and require within twelve month after his decease then  from such refusal he will that all the legacy c give by the say will to his  nephew Thomas comens Sutton and the heir male of his body shall cease and be  void then he devise as follow I give to my say nephew all my freehold and  copyhold land in Brockley and Whepstead during the term of his natural life  and immediate after the death of my wife I also give to he the chequerinn c  during his natural life and from and after his decease I give the same to the  first son or issue male of his body and to the heir male of the body of such  first son and for default of such issue to the second son or issue male of the  body of my say nephew and to the heir male of such second son for ever then he  give to his sister Elizabeth Sandford a annuity of per annum to his niece  Bridget care per annum for their respective life provide that m say nephew  Thomas Sutton or his assign and the heir male of his body shall not do or  suffer any waste c and shall not defeat or obstruct the payment or performance  of any the annuity legacy or charitable bequest in his say will then he devise  that after the decease of either of his sister the like annuity as to they  give shall be pay for the relief of six poor man c in bury afterward follow  this clause and immediate after the death of my wife and the death of my say  nephew Thomas Sutton without issue male of his body or after the death of such  issue male I devise to my say trustee and their heir the said ChequerInn and  farm in the county of Suffolk on trust to pay per annum for ever for the  relief of six other poor man c then the information show that Thomas Sutton  the nephew die that some of the defendant pretend to be his heir at law and  other to be devisees under his will refuse to execute any conveyance pursuant  to the will of the first testator and pray that they may do so and account for  the profit and deliver possession to the trustee c comens to this information  the defendant plead that the nephew Thomas Sutton be tenant in tail by virtue  of the say devise to he in his uncle will do in mich term Ann suffer a  recovery of the Suffolk estate and two other recovery of the chequerinn part  lie in Middlesex and part in London and by indenture of lease and release date  the that and that of October declare the use to himself in fee and afterward  by will date the that of April Ann devise the premise and several sum of money  out of they to several of the defendant and by codicil devise several other  estate to the defendant and then die without any issue and this be set up in  bar of the relief pray by the bill comens er p this plea be allow by the court  of exchequer but afterward on appeal to the house of lord that decree be  reverse and now it be insist that Thomas Sutton the nephew be by this will of  his uncle not tenant for life but tenant in tail and consequent enable to  suffer the recovery and bar the subsequent bequest to the trustee for  charitable use it be admit that the nephew Thomas Sutton do take at first only  a estate for life remainder to his first and second son successive in tail but  then by the subsequent word and immediate from and after the death of my say  nephew without issue male c he have a estatetail then a devise to one for life  and after to his issue by a second wife give a estatetail and so it be resolve  in the case of king and mell vent that the case of Mod Eq Abr pl a Langley and  Baldwin be a case in point which be this a by will devise land to Henry his  old son for life and after his decease to Jonathan his grandson for life  without impeachment of waste and after to the first son of Jonathan and the  heir male of his body and for want of such issue to the second and so on to  the three four five and six son of Jonathan and the heir male comens of their  respective body and in case Jonathan die without issue male then be devise  over to another this case be by the Lord chancellor refer to the consideration  of the court of common plea and by they resolve to be a estatetail in Jonathan  that the clause he shall not do or suffer waste can not vary the case for so  it be in the case of king v mell and Langley v Baldwin and it be fit to  restrain it with regard to his first and second son that the case of Popham  and Bramfield I p wms Eq Abr pl vern holt Freem fitzg ves Eq Abr pl pl a salk  will indeed have be contrary if it have be as there report but that report do  not true state the case for the limitation do not go only to the ten son and  rest there it be limit to every other son and son c that the clause if be  refuse to convey c or do endeavour to defeat or obstruct the performance of  the charitable bequest c be argument that the testator intend a estatetail to  his nephew rather than otherwise for it be say that the legacy c devise to his  nephew and the heir male of his body shall cease c and if he and the heir male  of his body shall commit or suffer waste c which show that the testator  apprehend what he devise to his nephew will go to he and the heir male of his  body and from clause of that kind though in themselves void and of no effect  the intent and meaning of the testator may be collect as appear in Sunday case    it can be no objection to this construction that the trust of the estate bar  by his recovery be for charitable use for the single question be whether  Thomas Sutton the nephew have a estatetail in he whereof he may suffer a  recovery or not if be have all estate depend upon that entail will be equal  bar whether they be give to charity or not nor will there be any difference  between the chequerinn of which the testator be seize in fee and the estate in  comens Suffolk whereof he have only the equitable interest for the  construction of the word of a will must be the same in a court of equity as in  a court of law and the devise of a equity must be govern by the same rule that  the devise of the legal estate be govern by a recovery of a equitable interest  or trust bath the same consideration in a court of equity as if the person who  suffer it have have the legal estate in the same manner and have suffer a  common recovery such recovery will be consider in a court at law it will make  a strange confusion if the same word apply to two different inheritance I one  a legal the other a equitable one shall give the same person a estatetail in  the one and only a estate for life in the other but it be insist on the other  side and determine by the court that as to the chequerinn whereof the devisor  be seize in fee the question be proper at law and therefore the court will not  determine but leave to either that be out of possession a liberty of try at  law his title that what be urge and the case cite seem very good law for if a  man devise to a for life and after his death to the issue of his body or as  king and Mellings case to the issue of his body by a second wife it will not  now be doubt but that a have a estatetail although he shall comens er p be  restrain from waste or have power give to make a jointure that in like manner  the case of Langley and Baldwin seem good law for when a man give land to a  for life and after his death to his first son and the heir of his body and so  on to the six or ten son and then add but if he die without issue male of his  body then I give the land to b in tail these latter word will create a  estatetail in a subsequent to the limitation to his son particular express for  it be the plain intent of the testator that b shall not have the land till a  total failure of issue male of a be the never so many shall first happen but  as all the son not particular speak of must take by way of descent there be no  word of purchase with respect to they consequent in order to make good the  manifest intention of the devisor such construction will be make as in case of  a limitation of use to the right heir of he who convey where a use result to  the grantor since by comens a maxim in law he can make his right heir  purchaser but such construction be not make but where it be make necessary by  the plain and evident intention of the testator and therefore where clement  Frenchman devise to his wife for life then to his cousin clement and the heir  male of his body si to touch and if it happen his cousin clement die without  heir of his body then to his cousin Alex f and to the heir male of his body  for ever clement leave issue a daughter and die without issue male and it be  insist that by the subsequent word if clement die without issue general  without say issue male or such issue or any word of the like nature the cousin  clement must take a estate in tail general which will go to his daughter but  it be resolve by the whole court without difficulty that he shall only take a  estate in tail male for the latter word shall be govern by the former Eq Abr  pl a die bendl pl and more the present case may perhaps be a middle case  between these two it be certain that the case of Langley and Baldwin do not  come up to it exact for there be a plain intention of the testator that till a  total failure of issue male of Jonathan the estate shall not go over to other  and it be in nature of a condition precedent to the other take but here it be  plain throughthe whole precedent part of the will that John Sutton shall take  but for life he take care he shall not do or suffer waste that he shall not  refuse to convey accord to the trust c that he shall keep the premise devise  in repair and shall not impeach question or endeavour to defeat avoid destroy  invalidate or obstruct the payment or performance of all or any of the annuity  legacy or charitable bequest in his will therefore it may seem unreasonable to  think that the testator mean in the very next word to give he such a estate as  may enable he to defeat or destroy or to put such a construction upon they  unless there be a absolute necessity for it but where be that necessity the  word be not pen in the comens nature of a previous condition as in the case of  Langley and Baldwin but rather be design to denote the time when the  charitable bequest shall take effect from and immediate after the death of my  wife and the death of my nephew Thomas Sutton without issue male of his body  or after the death of such issue male I devise to my say trustee c and as  there appear no intent of the testator to give his nephew any other estate  than before so the word may be satisfy with a different construction for the  word from and immediate after seem relative to the devise before immediate  after the estate already give I devise to my trustee and then after the death  of the nephew without such issue male as before mention or it may mean no more  than this if at the death of my nephew he have no issue male live or if he  have when they die the estate shall immediate go to his trustee and in case  such construction be not make the word or after the death of such issue male  must be reject and be entire useless what be say that the word recite in the  restrain clause which be design to prevent his defeat his charity then the  bequest to he and the heir male of his body shall be void if be and the heir  male of his body do waste c import that the estatetail be intend to the nephew  by the testator do not necessary conclude so far since they may be satisfy by  the bequest give before to he and his son and it will make will very uncertain  if every uncautious and incorrect expression in passage shall be lie hold on  to determine the testator comens er p meaning to be different from what seem  to be so upon the consideration of the whole will it be true every such  expression may be make use of to illustrate the testator intention and that be  all that be do in Sunday case   where upon the whole complexion of the will  the testator will be hold to be that all the child shall have the like estate  and not some to take in tail and other only for life these thing be mention  not to deliver the opinion of the court upon this point one way or other but  to show comens that it may deserve consideration and be a question at law be  fit to be leave to a trial and not determine in equity especial since it  appear that there have be some doubt in the case for when the exchequer allow  the plea they must have conclude that Thomas Sutton the nephew take a  estatetail by the will and when the house of lord reverse their decree it  argue at least that they think it doubtful and deserve further consideration  as to the farm and estate in the county of Suffolk whereof the devisor have  only a equitable interest and the legal estate be in Thomas Sutton the nephew  that stand upon a different foot and be proper for a court of equity to  determine the court clear agree that there be no difference in the  construction of the word of the will in a court of equity from what they will  have in a court of law and therefore if a devise of land be make by he who  have only a equitable interest or be but beneficiary and trust the devisee  will take the same estate in all respect as he will have do from the same word  if the devisor have be seize in fee of the legal estate nor will any  difference arise in the construction of the word of the will from the  remainder be limit or dispose of for charitable use than what will arise if  the same remainder have be dispose of to private person but in this case the  bill be that the heir and devisees of Thomas Sutton the nephew may be decree  to convey pursuant to the direction of the will he in the first place charge  and subject all his estate to the payment of his debt and to the annuity and  legacy give by his will then take notice that the legal estate of this farm in  Suffolk be in his nephew Thomas Sutton he direct he to convey the same to the  trustee afternamed and their heir upon the several use trust and purpose after  limit and appoint or else to declare the trust thereof by deed c in such  manner as the say trustee shall reasonable think fit and require in twelve  month after his decease now in case the bill or information comens have be  exhibit within the twelve month to enforce such conveyance or declaration of  trust will not the court have enforce a strict execution of the conveyance  such as may not have leave it in the power of the trustee present to defeat it  it be apparent the intent of the testator that the land in Suffolk shall go to  his nephew for life only that after failure of his child and their issue it  shall go to the charity specify in the will that the nephew shall not defeat  they that on his refusal to declare the trust he shall lose all the benefit  give he by the will will the court then have enable he immediate to have  defeat they No sure they will have put it out of his power to do so the  subsequent use trust and bequest in the will be only specification of the  special use and trust the testator desire to have perpetuate and take effect  and therefore the conveyance or declaration of the trust must have be direct  in such manner as that they may take effect it be to be do in such manner as  the trustee shall reasonable think fit and require will it have be reasonable  to require such a conveyance as may immediate have be defeat and the trustee  bar of the estate and interest intend they the conveyance in this case must  have be direct agreeable to what will have be do in the case of marriage  article and the utmost that can have be ask from the word after the death of  my nephew Thomas Sutton without issue male of his body beget or after the  death of such issue male will have be that a estate shall be limit to any  other son the testator shall have in the same manner as it be give by the will  to his first and second son not that it shall be limit to he and the heir male  of his body so as to defeat all subsequent limitation that this be now the  constant method of court of equity in the execution of conveyance upon  marriage article or other agreement the case of Trevor and Trevor be solemnly  debate and consider and afterward affirm in the house of lord comens er p  there the master of the roll sir comens John Trevor have agree by marriage  article to settle a estate on himself for life then to his wife for life then  to the issue male of his body by such wife and in case no settlement be make  in two year after the marriage the person seize shall stand seize to the same  use after the two Rears he suffer a recovery and dispose of the estate by will  but all be set aside and the construction make be that the article shall have  be execute so as not to have enable the master of the roll to defeat the child  of the marriage and although it be insist that by the covenant to stand seize  the estate be now execute to the limitation as express in the article it be  hold that ought to make no alteration so in the case of butterfly I p wms Kely  fitzg Eq Abr pl a and voice determine by the master of the roll and afterward  agree to by the Lord chancellor it be direct that where a person devise money  to be lie out in the purchase of land to be settle upon a for life and after  to the heir male of the body of a it be hold that such settlement shall be  make as may effectual secure the estate for the benefit of the several issue  of a but by many case of a like nature in court of equity it seem to be just  that where conveyance be to be carry into execution pursuant to the direction  of article or a last will the same shall be execute in such a manner as may  secure to every one the estate or benefit intend he if it may be do consistent  with the rule of law and not execute in such a way as will enable one person  to defeat the estate of another if it can be proper prevent and such execution  as will have be decree against the nephew if live or if the information have  be exhibit in twelve month after the testator decease the same ought to be  execute by his representative now and whatever the trustee have do to prevent  it be contrary to the duty of a trustee and therefore the court declare that  the common recovery suffer by Thomas Sutton the nephew of the estate in the  county of Suffolk and the deed lead the use of it be a breach of trust and  ought to be set aside and that the heir and devisees shall join in execute a  conveyance to the trustee name in the will or such other as shall be appoint  trustee accord to the direction of the will upon the use and trust not yet  determine which be mention in the will that they shall comens likewise deliver  possession and account for the profit they have respective receive since the  relator be entitle and that the bill shall be retain for a year and either  side at liberty to try the title at law for that part which be not the  trustestate and then resort to the court for further direction and that the  plaintiff shall have their cost upon which the Sutton who claim under the  recovery afterward bring their ejectment in the court of exchequer which be  try in Hilary vacation and the jury find a special verdict videlicet the say  John sutton will and all fact necessary to bring the matter of law before the  court and in easter term the special verdict be argue in the term follow the  court give judgement for the lessors of the plaintiff be of opinion that  Thomas Sutton the nephew take a estate tail in the chequerinn and on the d of  June the court order the tenant to attorn c to the Sutton I p wms p in note