case freak against lee Trinity term car roll a man have land of a year in  possession and a year in reversion expectant upon a estate for life bequeathe  in different legacy to be pay out of his land within two year after his  decease and devise his land general without any limitation of estate to his  nephew the nephew take a estate in fee not on condition that he pay the legacy  within the two year but in trust to pay they SC Jones SC lev SC Pollexf  ejectment special verdict a seize of land in fee make his will and therein  give his cousin b twenty pound to be pay out of his land within one year item  twenty pound to c to be pay within two year after his decease and fifty pound  more to c to be pay out of his land within two year item fifty pound to b out  of his land when he shall come of age then he give all his land to Richard  general then it be find shower KB that there be but ten pound a year in  possession and thirty pound a year in reversion expectant upon a estate for  one life the testator die the old son and heir enter then the devisee Richard  die and his son enter and the heir bring his ejectment et si c the question on  the whole be what estate Richard have by this devise whether in fee or only  for life it be argue for the heir the lessor of the plaintiff that Richard  have but a estate for life the legacy not be to be pay by Richard but out of  the land into who band soever the land shall come they agree the case of  wellock v Hammond cite in Borastons case a and report in Leonard b but urge  that here be no person limit to pay the legacy nor be the nonpayment make by  the will to be a forfeiture or determination of the estate devise but only in  equity the legacy be to be pay out of the profit of the land beside that here  be nothing in the will from whence it can be imagine to be the intent of the  testator utter a   b Leon case SC cro Elizabeth shower KB er p to oust his  heir at law and the case of tailor v sayer c be cite as likewise the case of  Wilkinson v Merryland d where it be adjudge that by a devise of all his estate  no fee pass e e contra it be argue that here be a hundred pound to be pay out  of these land in two year time and who shall pay they the devisee can not if  he shall have it but for life for the land be but ten pound per annum in  possession and the devisee may die before the two year be out and the heir be  not bind to pay it in collier case f where the devise be that it shall remain  to the brother pay to one twenty shilling and to other diverse several sum  amount in all to fortyfive shilling and the land be three pound per annum in  value it be adjudge a feesimple and say if it have be out of the profit of the  land it will have be otherwise g but as that case be and as this case be the  devisee may pay the legacy and after payment he may die before satisfaction  make to himself out of the land bequeathe unless a fee be give he and a power  to sell shower KB Jones justice it be as much and all one as if the devisor  have say I give my land to the defendant he pay so much money and there it be  a condition now here in this verdict it be find that the legacy be not pay and  therefore the condition be break and the entry of the heir be lawful Pemberton  justice a bill in chancery may have be bring against the devisee and heir and  so the land will have be force to be sell dolben justice the devisee can have  no profit by the devise if it be but for life if it be out of the profit of  the land equity can help to a payment but if out of the land then the land be  charge and it shall be sell the court incline that it be a fee say adjornatur  but quaere if it be a condition as Mr justice Jones will have it for if a fee  it seem to be a condition for otherwise there will be no legal mean to compel  a payment of the legacy all the remedy will be in equity but this point be not  move by the counsel that argue it at this time the plaintiff counsel think  their case well enough in that the devise can be but for life as they argue  and the defendant counsel insist only how to answer the other objection Mr  gold in Trinity term follow argue for the plaintiff and he raise both the  question first what estate the devisee have and second whether it be in trust  or upon condition for the first he agree that accord to collier case  abovecited h have it be a devise of the land to Richard pay so much money it  will have be a feesimple and say that he grant that to they of the other side  and that they must c the case of tailor v sayer be I devise my land to my wife  for life and after her death the same shall remain to my issue and it be find  the testator have two son and two daughter and the remainder be hold void for  uncertainty cro Elizabeth but this case be deny to be law in the case of bear  v Amherst ray see also Loddington v kime lev salk d the testator in the case  of Wilkinson v Maryland be seize of diverse land in three different place and  the land in one of the place be mortgage to he and forfeit and it be hold that  a devise of all my good chattel lease estate mortgage debt c do not pass a fee  in the mortgage premise cro Elizabeth because by the word it appear that he  only intend to pass thing personal or lease whereof he be possess and not  freehold whereof he be say in law to be seize SC cro Elizabeth but see burst v  earl Winchelsea burr e that a fee passes by a devise of all my estate see more  roll Abr Mod lev Mod salk vezey ambler ld ray case t t Peer wms Bl Rep Cowp  term Rep term Rep term Rep f   g see Eq Cas Abr and do on demise of palmer v  Richard term Rep h   shower KB er p grant to he that if these legacy be  bequeathe out of the issue and profit of the land it will be certain but a  estate for life then suppose it fall out that the profit will not pay the  legacy in the time yet he take it out of the land and out of the profit of the  land to be the same thing for if a man grant the profit the land passes and a  to lift up facias be de terris and yet reach but the profit c shower KB then  second the question be whether they be to be pay within such a limit time will  alter the case he urge that it be only to be pay within such a time if  possible if the casual profit happen to be sufficient and this sense he argue  be both natural and reasonable natural because it be a debt charge upon the  land and then you must take it as the land will pay it it be reasonable for  the devise part be give the legacy the other be but a circumstance of time as  to the payment c possible it may happen that the profit of the land may  discharge these legacy as if the reversion fall present for one of the fifty  pound be not charge upon the land but only to be pay general in case of a  devise to I S pay c it be but of late year that that have be resolve a  feesimple for in the case of Bacon v hill I the contrary be rule that pay c  shall not make a feesimple but the payment be intend for the same estate which  be devise and to the same purpose he cite the case in dyer pl where the father  tenant for life remainder in fee to the son the son devise the land which he  have or may have in reversion after the death of his father to his wife yield  and pay during her natural life forty shilling rend per annum to the right  heir of his father and die live the father and it be rule that no estate pass  by this devise to the wife but for term of her life and that the payment of  the rend shall not begin until the remainder fall after the death of the  father insomuch that he have no right heir during his life and as to its be a  condition he cite mary Portingtons case king and the case in dyer pl where the  word be not pay but in trust and for the intent and purpose follow item I will  and my will and intent be that out of the rend and profit c and the judge all  incline that it be a condition in that case Mr sander argue on the other side  say that as to the first point he think they have resolve it the last term and  that the only doubt have be about its be a condition for who shall pay those  legacy the heir will not for the land be shower KB give away from he if the  devisee be bind it be more than the profit can amount unto therefore he must  have a power to sell and consequent a fee else instead of have a advantage he  will have a prejudice by the devise as for that fifty pound which be to be pay  general he say that the land be chargeable therewith for the item both before  and after it be to be pay out of the land therefore if the reversion shall  have fall the profit will not pay the legacy and it be very unlikely that the  testator shall suppose the tenant for life will die within a year after he as  to the other question there be no word to make it a condition but it be leave  whole to a construction upon the devise if it shall be a condition then upon  the first failure of the first payment the heir may enter and alien before the  second time of payment come and the purchaser have no notice of the legacy he  buy of one that be heir at law will not be liable at commonlaw and so you must  run into chancery and certain there they will give you more remedy against the  devisee than against the heir now no sale by the executor or devisees can bar  the legatee because the purchaser be bind to take notice of all the charge and  encumbrance lie upon the land by the will for they must come in and derive  their title by the will so that the same mean they have to know their title  they have to know the encumbrance and charge in the case of Martindale v  Martin l where a lessor devise his land to his lessee for year for the same  term he have before pay the same rend at the same day and under the same  covenant which be in the former lease it be adjudge that it be not a condition  but only a covenant or rather a trust I more king   l mich term Elizabeth cro  Elizabeth shower KB er p Scroggs chief justice though land and profit of land  do sometime signify one and the same thing yet not always therefore we can  conclude from that that it be out of the profit it be plain he mean two thing  first to have so much money pay and then second within such a time he shower  KB say that the contingency of reversion fall seem to he to signify nothing  for the testator can not be suppose to ground his devise upon that supposition  and suppose it shall have fall within a year after his decease the profit of  the land as the verdict have find they can not answer the legacy for he  conceive certain that the fifty pound general give be so place shall be charge  upon the land and therefore he think it a feesimple as to the second point  about the condition he conceive what Mr sander urge to be very material and  much better for the legatee to have the land liable upon a trust than upon a  condition and better to send they to equity against the devisee than against  the heir and therefore he resolve it to be a fee and a trust Jones justice  though the circumstance of time shall not avoid the substance of a deed or  will yet be a circumstance it may and do explain the intention of that  substance as to the second question he say he do somewhat doubt for that it be  most certain that word which seem to be of less compulsion than those in the  will in question will serve to make a condition in a will which will not in a  grant it be in vain to cite case none can deny it Crickmeres case m be in this  point express a man seize of land have issue two daughter a and b and devise  all his land to a and her heir to pay to b a sum of money at a certain day and  place the money be not pay and hold that these word to pay c do in a will  amount to a condition and the reason be that the land be devise to a for that  purpose otherwise the party to who the money be appoint to be pay will be  remediless Mr sander objection be equal against that case as against this  there it be say she have no remedy at law and we be not to judge of remedy in  equity dolben justice that it be a feesimple none can doubt and why it shall  be a condition I can see no reason the case in   light I have see and read and  in case there be any remedy at law against the heir after shower KB his entry  I shall agree thereto but there be none in equity there be and since the  legatee be force thither both against the heir and devisee they may expect  more favour in chancery against the devisee than against the heir Pemberton  justice it be clear the testator intend a feesimple shall pass for every  devise be presume in kindness to and for the advantage of the devisee for the  other question there be no great reason in the will to show that he intend the  estate shall be conditional it be plain we do and may take notice of equity  for the chancery be a court know and settle by the commonlaw and though in a  strict sense it be distinguish from the commonlaw which we use here in these  court yet it be the commonlaw that allow of such proceed by equity therefore  he conceive it a trust Scroggs chief justice the reason why such small matter  shall make a condition in a will be in favour of legatee and there be much  more favour allow they in this construction than in the other judgement for  the defendant n