c earl OF Winchelsea v NORCLIFF et all S c vern Ch Rep Lord chancellor  distribution in this case these question do arise upon the act for  distribution of intestate estate whether the grandmother shall have a equal  share with the brother or sister and it be say she shall because she be two  degree from the intestate and so be a brother or sister compute the degree  accord to the civil or the mode of compute the degree of proximity be  essential different between the civil and the canon law and the rule observe  in our court as to the distribution of intestates estate conform with a  exception to be mention in the next note to the civil law Mentney v petty Prec  in Charles with respect to the descent of real estate on the other hand our  court adopt the computation of the canon law Cowper v Cowper p wms canon law  videlicet one degree to father another from he to the brother and so the  grandmother be but two degree one to the father another to the grandmother but  the Lord chancellor seem clear that the grandmother shall have no share In  this instance the construction put judicial upon the stat pound car depart  from the rule of the civil law accord to which the brother and the grandmother  stand in equal degree of affinity and the grandmother as be in the lineal  ascend line be prefer to the brother or any other in the collateral line but  by our law in this conform to the canon law the brother make title immediate  from the brother salk and be consequent prefer to the grandmother who can only  claim mediate through the father of the decease Davis v Blackborough p wms  Evelyn v Evelyn Ambl Collingwood v pace Ventr whether a brother of the half  blood shall have a equal share with a brother of the whole blood and per  cancellar he shall not but shall have only half a share and so he say it be  hold in the king bench and since that there be a cause in the exchequer where  this point be in question the baron consult with he and he inform they of the  resolution in the king bench and they rule it accord in the exchequer quaere  whether it be not since resolve that he shall have a whole share it be now  quite settle that the half blood be entitle to administration and to the  distribution of personalty equal with the whole blood smith v Tracy Ventr anon  Ventr brown v Farndell Carth janson v bury bunb Watts v crook show p c it be  upon feudal ground that the half blood be exclude from the succession to real  estate freeman the intestate be a infant and the father of the intestate leave  a great personal estate to he make trustee the trustee purchase land for the  use of the intestate in case he accept thereof when he come to age and he die  before he come to age the question be whether this be personal estate to be  distribute or whether the land shall descend to the heir and as to this point  the court be doubtful but seem to incline that it shall go to the heir and  shall not return to the personal estate there appear no fraud in the trustee  but that they have well execute their trust but of this the court seem more  doubtful in walker v den Ves jun it be say the right of the heir and of the  personal representative be pure legal right neither have a scintilla of equity  to make the property that which it be not in fact they must take their right  as they find they the same rule be lie down in Oxenden v Lord Crompton ibidem  AttorneyGenerally bowyer Ves bertie v Lord Abingdon Meriv but in Wheldale v  partridge Ves Biddulp v Biddulp Ves kirkman v mile Ves it be hold that the  actual state of the property be not conclusive as to its devolution but that  in decide on its disposal a court of equity will consider not mere the state  in which it be but that in which it ought to be and see post c p c p if this  latter doctrine be approve it will leave the question in the text above quite  open in solve it perhaps some little assistance may be derive from a principle  lie down in Forbes v Moffatt Ves that where a party owe to infancy have be  incapable of express a opinion whether his personal shall merge in his real  estate the court will consider what will have be most advantageous for he and  presume he to have make that election now if the estate in the above principal  case a have continue personal the infant will have have a dispose power over  it before he attain the age of twentyone post c p but of land no will can be  make before that age see ex part Grimstone Ambl the doubt therefore express  whether the trustee have well execute their trust seem to have have good  foundation and see the extract from Reg lib infra a devise to the heir pay  pound to another brother within the space of three year and if he do not that  then the other brother shall have the land the money be not pay and the  question be whether the other brother shall have the land the question turn  upon the distinction between a condition and a conditional limitation have it  be a condition the party who commit the breach will himself have be the person  upon who as heir the right of entry devolve which will have be nugatory as to  relieve the legatee see however post c p by construe it a conditional  limitation which though void at commonlaw as to divest a estate once vest in  another be permit under the doctrine of use and of executory devise effect  will be give to the will of the testator not by enforce a penalty but by the  absolute determination of the first limitation without entry or claim by the  devisee over newis et ux v lark or scolasticas case Plowd Borastons case Rep a  rundale v eley cart in which case it may be observe chief justice Bridgeman  decide in direct opposition to the opinion ascribe to he in the text above it  shall be remember however that where in a will there be no express limitation  over to take effect upon the breach or performance of the proviso annex to the  precede estate then such proviso be not always construe to be a conditional  limitation but the apparent intent of the testator govern the construction  Gulliver v Ashby burr post c p Reg lib a fol the Lord chancellor declare he  see no colour to decree any share for to grandmother but as to the plaintiff  his lordship say he be full satisfy that the say Act of parliament do  immediate upon the death of a intestate and before any actual distribution  make vest a interest in the respective person thereby appoint to have  distribution of his estate as much as if it have be bequeathe by will and that  if any one of such person die though within the year yet that the part or  share of those so die ought to go over to their executor or administrator and  not to the survivor or to the next of kin to the first intestate and his  lordship decree accord as to this point but whether the brother and sister of  the half blood to the intestate shall share equal with those of the whole  blood and whether the money invest in land or the land themselves shall be  account part of the personal estate of the say intestate his lordship say he  will take time to consider and order a case to be prepare as to those two  point and it be order that all these point shall be state into case and then  he will consider of they and give his resolution freeman er p depart from the  rule of the civil law accord to which the brother and the grandmother stand in  equal degree of affinity and the grandmother as be in the lineal ascend line  be prefer to the brother or any other in the collateral line but by our law in  this conform to the canon law the brother make title immediate from the  brother salk and be consequent prefer to the grandmother who can only claim  mediate through the father of the decease Davis v Blackborough p wms Evelyn v  Evelyn Ambl Collingwood v pace Ventr it be now quite settle that the half  blood be entitle to administration and to the distribution of personalty equal  with the whole blood smith v Tracy Ventr anon Ventr brown v Farndell Carth  janson v bury bunb Watts v crook show p c it be upon feudal ground that the  half blood be exclude from the succession to real estate in walker v den Ves  Jun it be say the right of the heir and of the personal representative be pure  legal right neither have a scintilla of equity to make the property that which  it be not in fact they must take their right as they find they the same rule  be lie down in Oxenden v Lord Crompton ibidem attorney general v bowyer Ves  bertie v Lord Abingdon Meriv but in Wheldale v partridge Ves Biddulp v Biddulp  Ves kirkman v mile Ves it be hold tat the actual state of the property be not  conclusive as to its devolution but that in decide on its disposal a court of  equity will consider not mere the state in which it be but that in which it  ought to be and see post c p c p if this latter docrtine be approve it will  leave the question in the text above quite open in solve it perhaps some  little assistance may be derive from a principle lie down in Forbes v Moffatt  Ves that where a party owe to infancy have be incapable of express a opinion  whether his personal shall merge in his real estate the court will consider  what will have be most advantageous for he and presume he to have make that  election now if the estate in the principal case above have continue personal  the infant will have have a dispose power over it before he attain the age of  twenty one post c p but of land no will can be make before that age see ex  part Grimstone Ambl the doubt therefore express whether the trustee have well  execute their trust seem to have have good foundation and see the extract from  Reg lib infra the question turn upon the distinction between a condition and a  conditional limitation have it be a condition the party who commit that breach  will himself have be the person upon who as heir the right of entry devolve  which will have be nugatory as to relieve the legatee see however post c p by  construe it a conditional limitation which though void at commonlaw as to  divest a estate once vest in another be permit under the doctrine of use and  of executory devise effect will be give to the will of the testator not by  enforce a penalty but by the absolute determination of the first limitation  without entry or claim by the devisee over newis et ux v lark or scolasticas  case Plowd Borastons case Rep a rundale v eley cart in which case it may be  observe chief justice Bridgeman decide in direct opposition to the opinion  ascribe to he in the text above it shall be remember however that where in a  will there be no express limitation over to take effect upon the breach or  performance of the proviso annex to the precede estate then such proviso be  not always construe to be a conditional limitation but the apparent intent of  the testator govern the construction Gulliver v Ashby burr post c p Reg lib a  fol the Lord chancellor declare he see no colour to decree any share for the  grandmother but as to the plaintiff his lordship say he be full satisfy that  the say Act of parliament do immediate upon the death of a intestate and  before aniu actual distribution make vest a interest in the respective person  thereby appoint to have distribution of his estate as much as if it have be  bequeathe by will and that if any one of such person die though within the  year yet that the part or share of those so die ought to go over to their  executor or administrator and not to the survivor or to the next of kin to the  first intestate and his lordship decree accord as to this point but whether  the brother and sister of the half blood to the intestate shall share equal  with those of the whole blood and whether the money invest in land or the land  themselves shall be account part of the personal estate of the say intestate  his lordship say he will take time to consider and order a case to be prepare  as to those two point and freeman er p by Reg lib a fol we learn that in hill  term follow the Lord chancellor I assist by Atkins c b and Lutwyche I declare  that the party of the half blood be entitle to a equal share of the surplus of  the personal estate of the intestate with the party of the whole blood and  that distribution thereof ought to be make among they share and share alike  and it be decree accord and as to the other point his lordship declare that  the money lie out in the purchase of land ought to be account for as part of  the personal estate of the intestate and to be distribute with the rest  thereof and it be therefore decree that a sale shall be make of the say land  and premise so purchase and that the money to be raise by such sale shall be  bring into account and distribution make thereof as part of the personal  estate of the say intestate