c sir henry gore et all plaintiff ch Bickerstaffe Elizabeth his wife Jo  EVERSFIELD per Guardianum suum dame whether alford widow and Jo alford by the  say dame whether his guardian defendants S c Pollexf Charles can chancellor Ch  I foster Ch I Bridgman and Ch baron hale appeal from decree make by the master  of the roll by the defendant dame whether only sir Jo Alford decease be seize  of the manor of ham c by indenture April car and fine thereupon settle the  same to the use of himself for life the remainder as to part to the use of  Frances his wife for life for her jointure the remainder to his first and four  son in tail remainder to sir Edward Alford his brother for life remainder to  sir Edward alford first and all other his son in tail remainder to his own  right heir under a proviso that it shall be lawful for sir John and sir Edward  when they shall be sole seize of the premise or any of they at their pleasure  to make lease of the same or any part thereof for year under what rend they  please July sir John Alford make his will whereby he give his daughter jane  the defendant eversfields mother pound and to his daughter Elizabeth now the  wife of the defendant Bickerstaffe pound to make per portion pound and devise  to her all his message in Whitefriars London pitch hatch and Huswellstreet in  Middlesex and in WiggenHold in Sussex habendum to her and the heir of her body  remainder to sir Edward Alford and his heir provide that if sir Edward pay  Elizabeth pound at her marriage or year which shall be first the estate to her  to cease and the premise to remain to sir Edward and his heir and of his say  will he make Frances his own wife executor and afterward pursuant to this  power by indenture April car and by indenture January do demise to freeman the  plaintiff the great part of the manor of ham c from Michaelmas then last pass  for year render S in trust that they shall permit the say sir Jo Alford during  his life to take and receive the rend and issue of the say manor and upon far  trust that after his decease Frances his wife shall receive the profit of the  say manor in satisfaction of her jointure so far as the premise by any former  assurance be any way liable thereunto and to permit her during her life to  receive out of the residue of the premise pound per and during the life of her  husband if the term so long continue and shall permit his say wife if the term  so long continue to receive the residue of the rend during the residue of the  term of year if she shall so long live to the intent she shall pay thereout so  much money towards the legacy as his personal estate shall be want in and to  pay the residue to such person as the say sir John Alford shall appoint by his  will and for want of such appointment to retain the same to her own use and  upon far trust that the plaintiff after the death of Frances during the  residue of the term of year shall permit such person and person freeman er p  as the say sir John Alford shall in his lifetime by any write by he seal in  the presence of any two credible witness or by his last will appoint and for  want of such nomination and after the death of such nominee the heir of the  say sir John Alford to have and receive all and singular the rend of the  premise the say sir John Alford by a deedpoll the same d of Jan sign and seal  in the presence of four credible witness thereby recite the say demise and  trust do nominate the old son of sir William Alford his brother to have out of  the residue of the premise pound per and and his two young son pound apiece  and the say sir Edward Alford to receive the rest of the profit by the trust  of the say demise limit to be pay by the say Frances and after her death to  receive the residue of the profit during the residue of the term to his own  use it appear by one witness that sir John Alford three or four day before his  death which be before the trust and declaration of trust do acquaint that  witness that he have settle that estate in ham well as he think and that his  brother sir Edward Alford be by freeman agreement to have all his estate after  his death and that he thereout appoint some allowance to his daughter  Eversfield and declare that the defendant Elizabeth now wife of the defendant  Bickerstaffe be not to have any thing out of his estate there for that he have  otherwise provide for her sir John Alford the night of the same day wherein  the declaration bear date die without issue male leave the two daughter his  heir sir Edward Alford die intestate the defendant Dame whether his relict  have take out administration jane the mother of the defendant jane Eversfield  and who heir she be die in the life of Frances her mother Frances have prove  the say will of her husband die have make Elizabeth Bickerstaffe her executrix  the defendant dame whether administratrix of sir Edward Alford the defendant  John Alford as first son and heir of sir Edward Alford the defendant  Bickerstaffe and his wife as executrix to jane who be executrix of sir John  Alford and John Eversfield as coheir with Elizabeth to sir John Alford all  claim the benefit of the trust during the residue of year after Frances her  death the bill be that the defendant shall interplead and to have the  direction of the court to who the trust belong upon the hear by the master of  the roll Nov car in as much as the power reserve to sir John Alford by the  lease be that after the death of Frances the trustee shall permit such person  as he shall nominate and after the death of the nominee his own right heir to  receive the rend c I the court be of opinion that sir John Alford have thereby  no power to nominate any person to receive the rend c but during the life of  the nominee and no long for after the death of the nominee the heir at law be  nominate by the original deed to receive c and when after the deed poll sir  Edward be nominate to receive the rend that must be intend if he live so long  for the deed poll recite the deed and be in pursuance of the trust therein and  that sir John alford intention in the original lease be certain that after the  death of the nominee his own heir shall have the residue of the trust and both  the deed be execute together be to be take but as one assurance ante c p and  note and c p and if he have intend that the heir executor or administrator of  sir Edward shall have the remain part after sir Edward death he will have name  they as well as sir Edward and for that the interest freeman of the term be  always in the plaintiff and not in sir Edward but only as nominee to the  profit he be dead the trust to he cease and nothing passes to the heir or  administratrix but remain to Elizabeth the survive daughter heir and executrix  of sir John Alford and the testimony of Elizabeth can be intend to relate to  no other settlement but the first by deed and fine and not to the second raise  the trust in the lease which be not then in be make after the discourse the  day of his death and that the residue of the trust of the term do remain to  the heir at law of sir John Alford who in a doubtful case ought to be prefer  especial when it be so consonant to the intention of John Alford and the  defendant Elizabeth also his executrix and do therefore order and decree the  same accord and that the rend arrear and for the future be pay her c and upon  the appeal the question be upon the whole case whether sir John Alford have  power to dispose of the residue of the term of year after the death of Frances  or whether he be not restrain b that the limitation of the trust to the heir  after the death of the nominee it be offer by the counsel of the appellant  that sir John Alford after two limitation to two person have not power to  limit to a three after the death of the second because it be a executory  devise upon a executory devise and tend to the entail of a chattel and make of  a perpetuity and this limitation freeman er p of John Alford they say be out  of the power of the trust and not out of the interest of the term the court do  all agree in one uniform opinion that the limitation of a term to several  person in remainder one after another if those person be in be and particular  name can not tend to a perpetuity otherwise if the person be not in be but  though not good as a remainder a devise which must take effect if at all  within the space of year after the period of a life in be be good under the  doctrine of executory devise Stephens v Stephens can tempt Talb and that a man  may declare the trust of a possibility in remainder but that the limitation of  a trust of such possibility to the heir of the limitor be a void limitation  and the trust be in the limitor though of a chattel real and he have by the  deed poll the same day limit the lease which be make pursuant to the power of  the first settlement to sir Edward Alford the whole remember without any other  limitation or restriction which good limitation freeman of it to sir Edward  Alford his executor and administrator and if the power of sir John Alford have  be defective his interest ought to come in aid to make good the legacy of  pound and pound per and and of the remain term and otherwise the trustee may  come in and claim the lease discharge of all trust and there be nothing to  oppose the limitation of the trust but the implicate and mistake expression of  the deed the whole court resolve that the former decree be ground upon a  mistake foundation and that take both deed together they ought to be interpret  that the power interest and limitation of sir John Alford be to sir Edward  Alford be explain by the say one witness and that sir Edward Alford his  executor and assign ought to have the term after the death of Frances and dame  whether therefore entitle thereunto as administratrix of sir Edward Alford and  therefore order and decree accord and that the former order and decree be  discharge and that the plaintiff shall come to a account for and pay the say  dame whether the rend and profit and convey to her if require c more Hatton  Cox and Molineux   cro     and quaere why the trust of a possibility of a term  be declarable when the remainder of a possibility be not assignable   this  difference between the rule of commonlaw by which assignment be regular make  and the equitable doctrine as to declaration of trust no long exist  possibility couple with a interest be now descendible releasable assignable  and devisable at law Jones v roe t r by Reg lib a fol we learn a case be order  to be state that the court may advice with the judge thereon on the that of  November the master of the roll deliver his opinion contrary to that give by  the judge that the benefit of the say trust belong to the defendant  Bickerstaffe and his wife and decree accord Fol on a rehear it be order that  the say former decree be discharge and that the plaintiff the trustee shall  come to a account for and pay unto the dame whether Alford the rend and profit  of the premise which be in arrear and shall also pay and satisfy unto the say  dame whether the grow rend and profit of the say premise until the end and  termination of the say term of year and shall convey and reassure the say  premise to the say dame whether or to her assignee for the remainder of the  term if they be thereto require