case shield versus atkins August it will be dangerous where a person enter on  the foot of the trust and never make any declaration of his have perform the  trust in pursuance of the will to construe this such a entry as that fine and  nonclaim will bar the right of the plaintiff a remainderman Robert shield of  Nunthorpe in Yorkshire be seize in fee of a message and land in great Ayton by  his will date the that of December devise to Robert shield of Carlton  carpenter from and after the decease of and the testator wife the say message  and land to hold to the say Robert shield the carpenter and his heir and  assign in trust till the rend and profit of the say devise premise shall raise  and pay the several legacy and bequest therein after mention and so soon after  his say estate shall by the rend and profit have raise and pay the same he  atkins er p give the say premise to Robert shield son to his brother William  shield for his life then follow these word and be my will be that the say  Robert shield the carpenter and his heir shall have a contingency of enjoy my  say estate and et not design to oust my say nephew Robert shield nor his issue  or issue so long as there shall any remain in the line from his body direct  from and after the decease of he my say nephew Robert shield I give the  premise aforesaid unto the heir of his body male or female for his or her  natural life and after his or her decease to his or er heir male or female of  his or her body for their life and so to be continue as a life estate only in  the line of he my say nephew Robert shield his issue and their issue of their  body one after another so long as any such shall be and for default of such  issue then I give the say premise unto the say Robert shield carpenter my say  trustee his heir and assign for ever the testator die soon after a d upon his  death his widow enter upon the say message and land and enjoy the same till  her death in the year and then Robert shield of Carlton the plaintiff father  as trustee under the will enter thereupon and out of the rend and profit pay  several of the legacy and he die about the that of November the plaintiff as  his son and heir at law enter upon the say premise and for some time receive  the rend and thereout pay off the residue of the legacy atkins Robert shield  the nephew of the testator go beyond the sea in the life of and the testator  widow and be upon his return to England fall sick on board the ship and  thereupon be set on shore in the west of England die there have never be in  possession of the say premise and leave jane his only child a infant and the  defendant mary his widow the plaintiff receive for some few year afterward the  rend of the premise and remit the same to the defendant Atkins brother of the  defendant mary for the use of jane and the defendant Atkins for many year  afterward receive the rend for jane use jane die in the year without issue  unmarried and a infant and upon her death all the limitation of the say  premise under the will to Robert shield the nephew and the issue of his body  be spend the plaintiff become entitle to the feesimple thereof and in bring  ejectment but not be able to prove the death of Robert the nephew and jane and  term likewise stand out do not proceed to trial and pray by his bill that  these term may not be set up at law against the plaintiff in any ejectment for  the recovery of the possession of the say premise and that he may have the  title deed deliver up to he and that the defendant may account with the  plaintiff for the rend and profit the defendant Atkins as to such part of the  bill as seek a account of the rend accrue due since the death of jane shield  or to be let into the possession thereof c plead in bar that by a indenture  date the that of June Robert shield the nephew in consideration of pound do  grant and sell to the defendant and his heir all his right title use interest  reversion and remainder of and in all the say message and land to hold the  same and all the estate right title and interest of Robert shield the nephew  immediate from and after the decease of and shield and the expiration of the  trust to Robert shield of Carlton for the payment of legacy unto the defendant  his heir and assign for ever that the value of the estate purchase be but  pound S and therefore pound be a full consideration be subject to the widow  lifeestate and the payment of the legacy he admit he enter on the death of the  widow and pay the legacy and that in the twelve year of the present king he  levy a fine of the say premise with proclamation but that no deed be make  declare the use of the fine but the same be intend by the defendant to be to  the only use of the defendant and his heir atkins that he at and from the time  of levy the fine be and have be ever since and be now seize and in the actual  possession and receipt of the rend and profit of the say message and land and  that neither the plaintiff nor any other person by his order do within five  year after such fine levy and proclamation make any entry into such message  and land wherefore the defendant plead the fine and proclamation to so much of  the bill as aforesaid Mr Wilbraham for the plaintiff cite the case of Machil  versus clerk Mod and in holt case Lord chancellor the person who have levy the  fine do not appear to I to have atkins er p such a case as ought to be favour  if in law or equity it can be get the better of but if he have a right in law  I do not at present see that equity will take it from he the defendant do not  take the purchase on the credit of the grantors be seize in fee for Robert  shield the nephew have grant to he only the right title and interest he have  in the land and not the land itself which create a doubt even on the face of  the conveyance itself what kind of estate Robert shield can convey to be sure  it be not clear what estate the nephew have under the will of his uncle but  prima fancy it seem to I as if the grantor have only a estate for life though  I be not oblige to give a opinion as the subsequent limitation be to the heir  of his body for life the plaintiff counsel have make two objection first that  the defendant estate be but pur auter vie and that after the death of the  testator widow and Robert the nephew he levy the fine if it have be a lease  for year determinable on life reserve rend and the life dead on which the  estate determine the defendant will have be a tenant by sufferance and though  there be a mixture of wrong the landlord may affirm his title by accept rend  therefore the tenant by sufferance be extreme like a tenant at will and a fine  levy by he will not avail as have be determine in Mr justice fortescue case  ante S c if the defendant have a mind to gain a estate by wrong he shall have  make a feoff with livery which will have be a seize and then a fine levy  afterward and five year run out after the title accrue be a bar but the  present be not the case of a lease with a rend reserve but a devise of a  estate for life with remainder over and the wrong consequent be much great  atkins the second objection be a more material one and be a point of equity  that the next limitation in the will after the estate for life to the widow be  to Robert shield the carpenter and his heir till the legacy be pay and  therefore this be a fee determinable on the payment of the legacy and it be  very remarkable that the defendant own deed express it to be a grant from the  nephew of the say message and land after the expiration of the trust for  payment of the legacy and be admit by his answer that his estate be not to  commence till afterward after and the widow the nephew die then the defendant  enter but it be on the foot of the trust for he say he pay several legacy so  that he do not enter in contradiction to the trust but in pursuance of it and  therefore as a fine levy by a trustee shall never hurt a beneficiary and trust  it will be very material at the hear whether the defendant be not to be  consider as the trustee by undertake the payment of legacy on the very foot of  the trust Bovey v smith vern story v ld Windsor atk suppose the plaintiff have  enter as he may by virtue of the limitation before the legacy be pay the court  will have hold he a trustee and raise the legacy and it will be hard if the  defendant after own he enter upon the foot of the trust and pay the legacy  shall support the fine for no other reason but because he say he pay the  legacy long before the fine be levy suppose Robert shield the carpenter bad  enter and pay the legacy and then levy a fine this will not have give he such  a estate as will have bar the remainderman because it will be dangerous where  a person enter on the foot of the trust and never make any declaration of his  have perform the trust by payment of the legacy in pursuance of the will to  construe this such a entry as that a fine and nonclaim afterward will bar the  plaintiff right the remainderman who be to take after the determination of the  estate limit to Robert shield the trustee can not tell when the limitation to  himself take place in possession without notice of the expiration of Robert  estate by all the legacy of the testator be pay for it be not to be at the  peril of the remainderman to divine when the trust end but a account atkins of  the trust and notice of expiration of the trust must be give to he and a  person out of possession can not tell before but if the defendant have gain a  title both at law and in equity I will not take it from he and therefore let  the plea stand for a answer atkins er p