case Constantine Phipps appellant earl OF Anglesey and other respondent that  June Mews dig xv if a will be make and afterward another will without cancel  the former and either will be prove to be confirm after the other will the  whole estate comprise in the will so last confirm will go accord to the  limitation in that will If there be two inconsistent will of the same date  neither of which can be prove to be last execute they be both void by the  commonlaw for uncertainty and will let in the heir at law unless such will be  explain by some subsequent act of the testator so as to reconcile such  inconsistency If two will appear and the limitation in both be consistent and  they have both be confirm by various codicil the will and codicil may all be  take together as one testamentary disposition and such construction make as  that the limitation in both will shall take place to the disinherison of the  heir at law order of the court of exchequer in Ireland affirm see post can bro  p c vide bro p c p Anglesey e v Annesley the several contradictory will and  codicil of James earl of Anglesey and the history of the proceed in  consequence thereof prior to the commencement of the present dispute have be  already state upon a former appeal the reader be request to refer to the  report of that appeal vol I p pursuant to the decree of the that of February  and the affirmance thereof by the house of lord on the that of march Charles  Annesley the respondent in that appeal in suffer six several recovery in the  court of common plea in Ireland of earl Arthur estate in that kingdom and in  the year follow the like number of recovery be suffer by the present  respondent the earl of the same estate Charles Annesley likewise by lease and  release of the that and that of June consider himself as the absolute owner of  the proportion of earl Arthur estate allot to he by the agreement thus  solemnly establish duly charge the same with brown pound to the respondent  mark white in trust for the payment of his debt and for such other purpose as  he shall by his will appoint and further grant a moiety of the yearly value of  his proportion of the same estate as a jointure for the respondent lady  levynge his then wife in case she shall survive he and by a further deed of  two day subsequent date he vest the wood upon the say estate in the respondent  mark white in trust for such use as he shall appoint by deed or will and for  want thereof in trust for his executor after these transaction there arise a  new claimant to part of earl Arthur estate in Ireland in the person of Francis  Annesley of Lincoln inn Esq who under the ancient family settlement and the  last earl Arthur will lie in his claim to great part of the say earl estate in  the county of Kildare kerry Clare and Armagh and the town of Drogheda  expectant on several lease ancient grant upon life call the long lease but the  respondent the earl and Mr Charles Annesley have so happy accommodate their  mutual difference with each other they for the prevention of all further  controversy in relation to the say earl estate immediate submit to the  pretention of Mr Francis Annesley and by a deed of settlement of the that of  march convey to he the several estate he claim and he in return by the same  deed convey or confirm to they the residue of the say earl estate in that  kingdom to hold accord to their former agreement and the above decree with  reciprocal covenant to complete their respective title by fine and recovery  the respondent the earl and Mr Charles Annesley be now proceed to execute the  decree of and settle the account thereby direct when to their great surprise  the present appellant set up a new and unexpected claim and near year after  his grandfather death and upward of year after the solemn proof of the will  and codicil the acquiescence of his mother the possession under they the  exemplifi brown er p cation of they by act of parliament and four year after  the agreement between the respondent the earl and Charles Annesley have be  establish by the supreme judicature of this kingdom and their judgement carry  into execution and follow by recovery the most solemn assurance in the law be  go over to Ireland upon a attempt to unravel all these proceed and to separate  the family estate from the title and honour in order to recover it to the  female branch which have be exclude by so many repeat act of his own  grandfather and for this purpose the appellant in may exhibit his original  bill in the court of exchequer in Ireland against the respondent the earl and  Mr Charles Annesley and also against Charles coote father of the respondent  coote who be then live as representative of the survive trustee in his  grandfather will and codicil and against the say Francis Annesley and several  other defendant the tenant of the estate who be not bring brown to hear state  the due execution of all the several will and codicil of the testator earl  James and the act of parliament for exemplify the same the marriage of his  mother in and her death in and that she have always reside in England as he  have do till late not have attain till the that of April and he particular  charge that the several will and codicil be duly execute on the several day on  which they respective bear date and as a further evidence of their due  execution he allege that after the death of earl John in the last earl Arthur  bad enter and enjoy the estate thereby devise to he under the true and clear  title of the say will and codicil till his death in when he the appellant  become entitle thereto in this manner videlicet that upon the death of earl  Arthur without issue the inheritance of the estate become vest in he as heir  at law of earl James the limitation in the will and codicil after earl Arthur  death be null and void in regard the two will and their respective codicil be  contradictory to and inconsistent with each other nor can it then or ever be  prove which of the two codicil of the that of December or the will or codicil  of the that of December be last execute all the witness be long since dead and  that though upon the bill exhibit in against lady Catherine Annesley his  mother and other to perpetuate the testimony of the witness they be all  examine and prove the due execution of the will and codicil on the respective  day of their date yet they do not prove which of the two codicil of the that  of December nor whether the will or codicil of the that of December be first  or last execute the uncertainty whereof render they all null and void on  account of the repugnant limitation after the death of earl Arthur without  issue and upon this equity the bill pray a account of the rend and profit and  to be quiet in the possession of the estate general and to give a colour of  equity a affidavit be annex to the bill as to the want of deed the earl and Mr  Charles Annesley several answer this bill and both concur in derive their  title as well under the ancient settlement of as under the will and codicil  and the agreement decree order settlement and recovery before state they  insist that the will of the that of may ought to be deem the last will or at  least part of it and that the will of the that of December follow and the  codicil thereto if not revoke ought only to be deem as part of the last will  that the appellant mother under who he claim and who when of full age live  many year after the perfection of the say will and codicil and have full  notice of the content thereof as well by the bill in as otherwise never think  proper to bring that matter in question in the lifetime of the witness or  afterward but on the contrary suffer the estate to be enjoy under the will and  codicil and be a party to some suit concern the sale thereof and submit to  such sale that it be brown unnecessary as well as impossible to prove by live  witness whether the will or codicil of the that of December be last execute as  it appear on the face of one of the codicil of the that of December that the  testator recite the make the will of the that of December and that to that  will he have annex a codicil of that date that the witness be duly examine as  to the due execution of the will and codicil on the day of their respective  date and their not be examine to the priority or posteriority be owe to a full  conviction in the party to that suit be short after the testator death that  they be regular execute in point of time so as to give they their respective  force and they insist upon the title before set forth as also the acquiescence  of the appellant mother for many year brown er p after her attain and after  full notice of the will and codicil in bar of the relief seek by the bill in  February Mr Charles Annesley die have make his will date the that of December  and after recite the article between he and the respondent the earl he direct  his proportion of the wood to be sell and the money apply to the use of his  will and also charge his proportion of the estate with pound for the same use  and with a jointure of one half thereof to the respondent lady levynge his  then wife for life and after payment of his debt and legacy make her residuary  devisee and legatee of all his real and personal estate and sole executrix of  his will lady levynge have prove her husband will the appellant in easter term  exhibit his bill of revivor against her charge her husband death and will and  that by his death without issue the appellant be become his heir at law as he  be the grandson and heir at law of earl James who be the nephew and heir at  law of Charles Annesley the father of the last name Charles the appellant also  in June follow exhibit his amend bill in order to introduce and put in issue  the different right of the respondent lady levynge and Mr white under the  trust create by Charles Annesley by the deed already state and the several  proceed and transaction between the respondent the earl and he as well  previous as subsequent to the agreement of which be thereby charge to have be  all calculate to conceal the appellant right and to prevent any judicial  determination on the contradictory limitation in the will and codicil and the  impossibility of ascertain the priority or posteriority of they and that  though the defendant have pretend that the will and codicil be consistent and  reconcileable with each other they have avoid affirm or deny in their answer  that they be so in regard to the limitation therein contain of the Irish  estate after earl Arthur death and the appellant allege the first notice of  his pretend tie to have be from the appeal in and the print case deliver on  that occasion upon which he observe that the respondent the earl have brown in  his case insist on the codicil of the that of December as a revocation of the  will of the same date and a republication of the will of the that of may and  that Charles Annesley have in his print case state the several will and  codicil as contain repugnant and contradictory disposition under some of which  the earl and under other he will become entitle to the bulk of the Irish  estate and have particular insist upon the will of the that of December as the  last subsist will and the limitation of the Irish estate after earl Arthur  death as that under which he will be entitle the respondent the earl lady  levynge and Mr white all answer this amend bill and again insist that upon due  consideration of the will and codicil there will not appear any repugnancy or  inconsistency but on the contrary that the testator intention from the whole  tenor of the will and codicil appear plain and consistent to dispose of his  estate to the heir male of Arthur first earl of Anglesey and that the same  shall never descend to his daughter lady Catherine or to the appellant as his  heir at law and deny that there be the least imagination of any pretention of  title which the appellant have to any part of the estate at the time of the  article of that as the witness to the will and codicil be dead and they do not  know when any of they be make otherwise than by the date and content the  appellant ought to show if he can the pretend inconsistency and as they can  not set forth which be first or last execute otherwise than by the date and  content they must refer to the intention of the testator appear therein and  the construction thereof whether the appellant have any title and that from  they it plain appear that no interest be intend for the testator daughter and  heir at law no mention be make of her in any of the limitation and that the  several will and codicil be accord to the rule of law and equity consistent  and reconcileable with each other and lady levynge and Mr white insist upon  the benefit of the several trust create by the trust deed and will of Charles  Annesley Charles coote the representative of the survive trustee in the will  and codicil put in the common answer but no answer be ever put in by Mr  Francis Annesley though his interest in so considerable a part of the Irish  estate under the settlement of be full disclose and put in issue by the answer  of the other defendant which occasion his be name a party in the bill brown er  p the appellant reply general to the answer of the respondent the earl and  lady levynge but as to the respondent Mr white who stand in the place of the  creditor of Charles Annesley and of her ladyship the widow and jointress to  claim the benefit of the trust deed execute by he the cause be hear upon bill  and answer only nor be any evidence offer to be read against he at the hear  before the court below and with respect to brown the respondent who answer be  reply to the appellant enter into no new examination of witness but content  himself with read the act of parliament for exemplify the several will and  codicil and the proceed and proof in the cause institute in for prove the same  against his own mother the then heir at law upon which evidence he rest his  case for the respondent the earl and lady levynge be give in evidence the  article between the earl and Charles Annesley in and the decree for a specific  execution thereof with the order of the house of lord affirm the same and the  several recovery suffer pursuant theretoThe trust deed execute by Charles  Annesley in for the payment of his debt and a provision for his widowAnd the  settlement in by which the great part of the Irish estate be relinquish to Mr  Francis Annesley the cause come to a hear before the court of exchequer in  Ireland in February and continue eleven day in hear and after take time to  consider of their opinion the court on the that of June dismiss the appellant  bill but without cost from this decree of dismission the present appeal be  bring and on behalf of the appellant it be argue W Murray p jodrell that  though the will be of different date they be by the republication of the first  will on the day of execute the second videlicet the that of December and the  republication again of both by the two codicil of the that of December make  and must be consider in law as if execute on the same day that though all the  witness to these will and codicil be examine in a suit bring to preserve their  testimony when the transaction be recent and the posteriority of the execution  of they may if ever have be ascertain yet every one of the witness be silent  as to this point and that notwithstanding it be of great importance even  suppose the validity of either of the will do not depend upon it to Lord  Altham the plaintiff in that suit to establish by proof the posteriority of  one of these will he be on the death of earl Arthur without issue entitle to a  estate for life only under one and to a estate tail under the other that  posteriority of execution for be the last will of a testator be as essential a  property to a valid testament as due execution and uncertainty as to this  point make every one of those testamentary act void between which such  uncertainty exist as far as the disposition in each be contrarient to the  other and as a latter will revoke a former so two contrary will execute  together must revoke each other and let in the heir unless one or the other  can be prove to be the last execute the heir be the person on who the law cast  the estate till a plain intent in favour of a certain devisee in the will duly  execute and have all the essential property of a legal testament be make to  appear this principle that two will execute at one and brown the same time be  void for uncertainty be establish by many clear and express authority both in  the civil and canon law from whence the commonlaw of England derive its notion  as to the property of testament with this difference only that as the  commonlaw of England favour the heir more than any other law so it require in  every respect great certainty in will and will not suffer such heir to be  disinherit even by probable implication or conjecture that till the fact of  posteriority be make to appear it remain absolute uncertain to who the  testator have give his estate and there be no ground to presume that he intend  it more for one person than another but if any such presumption can be collect  from the will or codicil now in question it can not alter the case because  whichever of these codicil of the same date be last execute such codicil must  establish that will to which it be a codicil and consequent the last execution  be a mere matter of fact and can not be make out from any conjecture draw from  the probable intent of the testator in favour of either devisee such  conjecture not tend to prove which be in fact the last will but only which  will the testator will probable execute over again if he be live whereas the  difficulty arise from the uncertainty of a fact which if prove must give the  will that be actual last execute the preference independent of any intent  arise from the will themselves and which brown er p fact be absolute necessary  to be prove to give either will any intent or operation at all that as all  these will and codicil be consistent in the limitation to earl Arthur and his  issue the appellant title as heir at law do not arise till there be a failure  of those limitation immediate after which he prosecute his right so that if  the fact be grow less capable of proof by the length of time there be no  ground from any laches in he to supply such defect by inference or conjecture  it have be always in the power of those claim under these will and who it be  plain be long ago apprise of these defect to have make out this matter by  proper proof in case it ever can have be prove there be therefore more reason  to presume that the witness themselves before who such instrument be seldom or  never read over do not know which of the two instrument execute on the same  day they first or last attest and consequent that this fact be original as  uncertain as it be now than to presume that any advantage to the devisees have  be lose by length of time that every question concern the execution and  validity of a will under which any legal or equitable estate in land be claim  be proper and only triable at law court of equity do not so much as examine  into or relieve against a will obtain by fraud nor ever establish a will by  which a trust only be devise without a trial if desire therefore as the devise  under which the respondent claim have never be admit by the heir of the  testator or try at law the appellant have at least a right to such a trial but  which by the present decree he be debar of brown for in order to have a legal  trial the appellant under the circumstance of this case be oblige to come into  a court of equity the legal estate be in a three person all the title deed in  the possession of the respondent who may set up what satisfy term they please  and the whole doubt arise upon the devise of the trust on the part of the  respondent the earl of Anglesey it be contend d rider c York that there appear  a clear and uniform intention in the testator to transmit his estate to the  male branch of his family and to exclude his heir at law who be a female and  ample provide for by a portion of pound under settlement and legacy of pound  repeat give her by the will of the that of may and that of December and which  legacy she accept under those will in her life time that the several will and  codicil be mean only as duplicate of each other and to be consider as one will  to effectuate this intention for the codicil of the d of January refer to one  last will only and the revocation of former will be insert in the first will  of the that of may and omit in every one of the subsequent instrument that the  appellant bill admit the due execution of all the will and codicil and the  present impossibility of prove by live evidence the priority or posteriority  of they be not to be impute to the respondent but to the acquiescence of the  heir at law for year till all the witness be dead and which acquiescence be  equal to a express admission of the validity of the different will and codicil  that these instrument all concur in the appointment of the same object to take  and in the disherison of the heir at law and the limitation in the will of the  that of may be preserve in every one of the subsequent will and codicil with  this difference only that Richard Lord Altham have die after the make of that  will the testator by the will of December follow change the estate tail limit  to the first son of Richard Lord Altham by the will of may to a estate for  life in his first son Arthur with remainder to his first and other son in  order the more effectual to secure the remainder to the first and other son of  his father but have in the will of December omit the limitation to those other  son he to supply that omission by a codicil of the same date set up the will  of may that be set up those limitation which be the only point in which the  two will differ and therefore the limitation contain in the will of may which  be omit in that of December can not be consider as limitation inconsistent  with those contain in the latter will but as limitation add to they there be  no limitation in the will of December which be not contain in the will of may  save only the alteration of the estate limit to Arthur Lord Altham the  testator have also a intention that Lord Arthur shall take the lesser estate  limit to he by the will of December and not the great under the will of may he  by the codicil of the that of December set up and establish both will and  these codicil be to be brown consider as one instrument establish two will in  the intention of the testator perfect consistent and which may be make so by  construction and the codicil of the d of January recite that the testator have  make his last brown er p will be a evidence that he look on both will as  consistent and as one will for if these codicil of the that of December import  a express intention to establish the two will be not good for the purpose so  express intend they can not be good for a purpose contrary to that intent but  ought rather to be void and leave the will and former codicil to stand as they  can independent of those codicil the rule be that a subsequent will not  sufficient execute to operate as such shall not revoke a prior will that the  suppose inconsistency between the two will rest only in a single limitation  which be the limitation to Arthur Lord Altham and his issue intervene between  the two limitation to earl Arthur and his issue and to Charles Annesley and  his issue and though this intervene limitation may be void on account of the  inconsistency yet the will will not be void in the whole but in the limitation  only wherein they differ consequent the limitation to Charles Annesley in both  will must take place immediate on the determination of the estate limit to  earl Arthur and his issue that of necessity one of the two will must be intend  to take effect as the last will of the testator and the different devisees in  each be the proper and only party to dispute the question between both which  be prior or which posterior in respect of the original execution or subsequent  confirmation either of the will be sufficient to exclude the heir at law that  if all these will and codicil we re now void upon the suppose impossibility of  prove which be the last they be so year since immediate upon the death of earl  James the testator and earl Arthur have no more right to enter and enjoy than  the succeed remainder man but the estate must have immediate vest in the heir  at law the appellant mother and yet the possession have ever since go accord  to the will and codicil without interruption till the appellant original bill  in that his mother have full notice and repeat opportunity to assert the right  now insist on she reside from her birth till her death in England where great  part of the devise estate lie and where the devisees principal reside she  survive the testator upward of thirty year be a party to the suit institute  for the sole purpose of prove his will and codicil and to other suit for the  sale of part of the same estate have again further notice by the public act of  parliament for exemplify the will and codicil and receive her legacy give her  by the two will and both they and the codicil be at different time under the  consideration of and receive a sanction as well from the spiritual and  temporal court as the legislature itself but if these will and codicil be void  no decree can have be make between the earl and brown Charles Annesley and yet  such a decree have be make and afterward establish by a order of the house of  lord recovery have be suffer and further settlement make in consequence of  that decree and provision carve out for family and creditor of which creditor  only one have be make a party to this suit and his answer not reply to and as  to he it be neither admit or prove that the appellant be the heir at law of  the testator the same argument in substance be urge t clarke g hay on the  behalf of the other respondent lady levynge and Mr white after hear counsel on  this appeal upon the that that and that of June it be propose to ask the  opinion of the judge as to some point of law and accord the judge present be  direct to deliver their opinion to the house on the follow question videlicet  saint whether if the will of the that of may be prove to be confirm after the  will of the that of Decenaber or the will of the that of December after the  will of the that of may the whole estate will not go accord to the limitation  in the will so last confirm d whether two inconsistent will of the same date  neither of which can be prove to be last execute be or be not by the commonlaw  of England void for uncertainty so far as they be inconsistent and will let in  their d whether the limitation in the will of the that of may and that of  December under which the respondent claim be or be not void for uncertainty  whereupon the judge desire some time may be allow they for that purpose it be  order that the further consideration of this cause shall be adjourn to Tuesday  then next and that the judge shall then deliver their opinion upon the say  question accord on Tuesday the that of June the Lord chief baron of the court  of exchequer deliver the unanimous opinion of the judge as follow videlicet as  to the first question if the will of the that of may be prove to be confirm  after the brown er p will of the that of December without any other  circumstance or if the will of the that of December be prove to be confirm  after the will of the that of may without any other circumstance the whole  estate comprise in the will so last confirm will go accord to the limitation  in that will As to the second question that two inconsistent will of the same  date neither of which can be prove to be last execute be by the commonlaw of  England void for uncertainty so far as they be inconsistent and will let in  the heir if no act of the testator subsequent to the will have explain they so  as to reconcile what otherwise will appear inconsistent and as to the three  question that the limitation in the will of the that of may and that of  December under which the respondent claim be not void for uncertainty because  the will and codicil be to be take together as one testamentary disposition  and that in this light the will of the that of December brown reduce the  estate tail give to the first son of Richard Lord Altham to a estate for life  to he by the name of Arthur Lord Altham with remainder to the first and every  other son of his body in tail male with remainder to Charles Annesley in  strict settlement but the codicil of the that of December establish the will  of the that of may and revive and set up the devise to the second and every  other son of Richard Lord Altham in tail male and upon both will take together  construction be to be make in the same manner as if the devise to Arthur Lord  Altham for life with remainder to his first and every other son in tail male  have be actual insert in the will of the that of may and this the more clear  appear inasmuch as the two codicil of the that of December confirm the will of  the that of may one of they in express word the other by confirm the codicil  of the that of December which confirm the will of the that of may and that  upon the whole the judge be all of opinion that the trust of the estate in  question be well devise in remainder to the respondent Richard earl of  Anglesey whereupon it be order and adjudge that the appeal shall be dismiss  and the decree therein complain of affirm jour vol p earl of Chatham v Tothill  brown PC er report date case the right honourable William earl OF Chatham  appellant William daw Tothill and maximilian western Esqs respondent that may  Mews dig xv S c Tothill v Pitt mad a by will give the dividend on his bank  stock exchequer order and other part of his personal estate to b for life and  after b s decease he give the say bank stock etcetera to the heir male of b s  body lawful beget for ever and for want of such issue to c for life etcetera b  take the absolute interest and the devise over to c be void for where the word  of a will can give a express estate tail in a freehold the same word apply to  personal estate will give the whole interest and as by a devise of rend and  profit land will pass by the same rule a devise of the dividend be of equal  import to that of the stock itself decree of the court of chancery reverse a  decree of the master of the roll reverse see fearne count Rem vol edit by  Powell Robert Tothill esquire by his will date the that of June devise and  bequeathe inter alian in the word follow videlicet I give to sir William  Pynsent of Burton in the county of Somerset bart the profit and half yearly  dividend of pound capital stock in the bank of England during his life with a  express condition that if any dividend shall be brown make of any part of the  capital the same shall be immediate lie out in the purchase of more stock to  complete the capital sum give I give to sir William Pynsent the yearly income  and payment of the six follow annuity on the pound per cent per and Payable at  the exchequer to wit brown er p No pound per and No pound per and No pound per  and No pound per and No pound per and in all pound per and now lie in the hand  of the officer of the bank of England to receive the payment yearly during his  life also I give and bequeathe unto the say sir William Pynsent a mortgage of  pound on land in the county of wilts for ever the write thereof be in my  strong mahogany box also a bind for pound be in my iron chest I give to mary  Cartwright now in my family my house in red lion street Clerkenwell and the  use of all the furniture and household linen therein during her life to  Leonora Ann Pynsent my dwell house and estate at Ovenys green in ken and the  use of all the good furniture and linen therein together with all the cattle  and cart horse and the utensil in husbandry on or about the premise my estate  at Knockbolt in ken rend by Thomas Stevens my house the corner of cateaton  street London rend by John Soaper packer also eight house in red lion street  lie in a row together beginning at Samuel Jeacocks baker and end at Michael  Kirby painter likewise the lease of four other house in the same street now or  late occupy by Martin Harvey esquire Robert Wilkinson Robert jupp carpenter  and Joshua Russell gentle during the term of her natural life upon this  express condition that she do live and dwell in my say house in ken three  month yearly in every year and do constant maintain and keep all the building  on the premise in substantial and necessary repair after the death of mary  Cartwright I give to the say Leonora Ann Pynsent my dwell house in London and  the use of all the good therein during her life and after the death of sir  William Pynsent aforesaid I give to the say Leonora Ann Pynsent the dividend  on pound bank stock and all the payment grow due on the above specify annuity  issue and Payable at the exchequer during her life also I give to the say  Leonora Ann Pynsent two estate at Patney rend by mark wit and Robert love to  keep sell or dispose of as she please and after her decease I give bequeathe  and devise all the aforementioned land house bank stock and exchequer annuity  to the heir male of her body lawful beget for ever together with all the  furniture in both my house and for want of such issue I give and bequeathe all  the say respective estate bank stock and annuity describe more at large as  above unto William daw son of William daw who marry my wife niece during his  life upon condition that he take and constant use the name of Tothill and  reside in my house in ken four month in every year brown and if he marry and  have issue I give devise and bequeathe all the say several estate to his heir  male lawful beget for ever he take and use the name of Tothill and for want of  such issue I give devise and bequeathe the say several estate to Maximilian  western esquire my wife nephew and his heir male for ever I give to my old  servant Catherine turner and Elizabeth Weston guinea per and each during their  life Payable every six month and to commence from the first quarter after my  death by sir William Pynsent or the person that enjoy the benefit of the bank  dividend and annuity at the exchequer I give to my intend heir my large  diamond ring repeat chase gold watch all my plate and book which I do direct  may be pack up in box and keep safe till it be apparent who will by virtue of  this my will have a right to enjoy my estate last I give all my personal  estate chariot horse etcetera not herein give or bequeathe after my funeral  expense and all debt pay unto my affectionate friend sir William Pynsent and  do appoint he sole executor and residuary legatee confide in his honour and  integrity to perform all and every article punctual the testator Robert  Tothill who have the most intimate friendship with sir William Pynsent and  reside at his house in the country several month in every summer die on the  that of February and soon afterward sir William Pynsent prove his will in the  prerogative court of Canterbury and possess himself of such part of the  testator personal estate as be not specifical bequeathe and receive the  dividend of the pound bank stock and exchequer annuity during his life mary  Cartwright name in the testator will die in his lifetime and upon his death  Leonora Ann Pynsent the daughter of sir William Pynsent by virtue of the will  enter upon all the testator freehold and leasehold estate thereby devise to  her and take possession of the furniture of the two house therein mention and  be advice that she indisputable take a estate tail in the freehold estate  under the word of the will and also the absolute property in the leasehold  estate and furniture brown er p she in her lifetime suffer a common recovery  of the real estate and sell the same and also the furniture Leonora Ann  Pynsent afterward make her will date the that of April and after give some  small legacy devise and bequeathe all her real and personal estate whatsoever  and wheresoever unto her father sir William Pynsent his heir executor and  administrator and appoint he sole executor of her will and by a codicil date  the that of may she devise a real estate which she have late purchase to her  father and his heir the testatrix die in October and soon after her death her  father sir William Pynsent prove her will and codicil and enter into  possession of the four leasehold house mention in Robert tothill will and  continue in the possession and brown enjoyment thereof and also of the  dividend of the bank stock and exchequer annuity leave by Mr tothill will  until his death sir William Pynsent die on the that of January have first make  his will and after give several legacy annuity and weekly payment to diverse  person he give and devise all his real estate and all the residue of his  personal estate to the appellant his heir executor administrator and assign to  and for his and their own absolute use and benefit and appoint the appellant  sole executor who accord prove the will and enter into possession of the say  leasehold house and afterward sell the same for pound which be the full value  thereof but the appellant never receive any rend for the same the respondent  who marry the testator Robert tothill wife niece from the time of miss  Pynsents death in October until sir William Pynsents death in never set up any  claim either to the freehold or leasehold estate or to the furniture devise  and bequeathe by Mr tothill will nor ever controvert miss Pynsents right of  sell the freehold estate mention in the will but after sir William Pynsents  death he claim the bank stock exchequer annuity and leasehold house and insist  that he be well entitle thereto and also to the immediate possession of Robert  tothill leasehold estate and have take upon himself the name of Tothill he in  easter term exhibit his bill in the court of chancery against the appellant  and the say Maximilian western pray that the appellant may be decree to assign  transfer and deliver up to he the bank stock and Exechequer annuity and also  the say leasehold premise and all such other personal right and thing as he  shall appear entitle to under the testator Robert tothill will and to account  with he as well for the dividend and annual increase and payment of the say  bank stock and annuity as for the rend and profit of the say leasehold premise  from the respective time the respondent become entitle thereto the appellant  put in his answer to this bill on the d of June and thereby insist on his  absolute right and title to the property and thing claim by the bill Mr  western also put in his answer to the bit and submit his right to the court  the cause be set down on bill and answer come on to be hear before sir Thomas  jewel the master of the roll on the that of June when his honour after a very  solemn hear be please to decree that the respondent bill shall stand dismiss  without cost after pronounce this decree the respondent in a letter write by  he to the appellant date the d of July declare that to free the appellant from  any suspense as the right in question have be judicial decide in his favour he  shall decline any further contest about they and wish the appellant a long  enjoyment of they and the appellant conclude from this letter that no appeal  be intend to be bring from the decree do some time after sell the pound bank  stock and brown exchequer annuity and as to the large diamond ring mention in  the testator tothill will none be find after sir William Pynsents death above  the value of pound nor any know by inventory schedule or otherwise to have  belong to Mr Tothill nor be there among several old gold watch of  inconsiderable value any one which can have be distinguish as Mr tothill some  plate however be find engrave with Mr tothill arm which be also of little  value and a box with book which by the report of a old servant be understand  to have be Mr tothill the respondent notwithstanding his say declaration and  after three year acquiescence appeal from the decree and on the d of June the  cause be hear before the Lord commissioner for the custody of the great seal  when their lordship brown er p be please to decree that the order of  dismission date the that of June shall be reverse and that the appellant shall  transfer the pound bank stock to the accountant general in trust in the cause  and that the appellant shall likewise assign the exchequer order and tally to  the accountant general in trust in the cause and deposit the same in the bank  with the privity of the accountant general on the credit of the cause and the  accountant general be to declare the trust of the say transfer and assignment  subject to the further order of the court and it be order that the master  shall take a account of the dividend and annual income of the say bank stock  and exchequer order accrue since the death of say William Pynsent and to  accrue thereon until such transfer and assignment as aforesaid receive by the  appellant or any other person by his order or for his use and that what shall  be find due upon such account shall be pay by the appellant to the respondent  and that the dividend and annual income of the say bank stock and exchequer  order after such transfer and assignment thereof shall be pay from time to  time to the respondent during his life and it be admit on the part of the  appellant that he have sell the leasehold estate in question and the furniture  of the house specifical bequeathe by the will of the say Robert Tothill it be  order that the master shall inquire into the value of the say leasehold estate  and the furniture and shall compute interest after the rate of pound per cent  upon what he shall find to be such value from the time of the sale and that  the appellant shall pay such interest to the respondent and the sum which the  master shall find to be the value of the say leasehold estate and furniture  shall be pay into the bank with the privity of the accountant general on the  credit of the cause and that the same when so pay shall be lie out in the  purchase of pound per cent annuity in the name and with the privity of the  accountant general in trust in the cause and he be to declare the trust  thereof accord and that the interest to accrue on such bank annuity shall be  pay to the respondent during his life and that the master shall take a account  of the rend and profit of the leasehold estate accrue brown since the death of  sir William Pynsent until the sale thereof receive by the appellant or any  other person by his order or for his use and that what shall be find due on  that account shall be pay by the appellant to the respondent and that the  master shall inquire into the value of the large diamond ring repeat gold  chase watch plate and book direct by the will of the testator Robert Tothill  to be keep safe until it be apparent who will by virtue of his will have a  right to enjoy his estate and compute interest on what he shall find to be the  value thereof from the death of the say testator Robert Tothill after the rate  of pound per cent and the appellant admit asset of Leonora Ann Pynsent and sir  William Pynsent to answer the same it be order that the appellant shall pay  the sum which the say ring plate watch and book shall be value at and the  interest thereon into the bank with the privity of the accountant general on  the credit of the cause and that the same when so pay into the bank shall be  lie out in pound per cent annuity in the name and with the privity of the  accountant general in trust in the cause for the benefit of the person to who  they shall thereafter belong and the accountant general be to declare the  trust thereof accord subject to the further order of the court and that the  interest to accrue on the say bank annuity shall from time to time as the same  shall amount to a competent sum be place out in like manner and no cost be to  be pay on either side but any of the party be to be at liberty to apply to the  court for further direction as there shall be occasion from this latter decree  the earl appeal contend e Thurlow I Madocks that it be a know fix and  establish rule of law that where the word of a will give a express estate tail  in a freehold there the same word apply to personal estate will give the whole  interest for otherwise it will create a perpetuity which the law abhor  inasmuch as no recovery can be suffer of or affect personal property that  though in the present case it have never be question that miss Pynsent take a  estate tail in the freehold yet the decree of the lord commissioner in  reversal of the decree of the master of the roll make the same word to pass a  estate for life only in the stock and other personal estate which be  transitory and subject to loss and decay and in their own nature less capable  of limitation over than real estate be that former the judge of the commonlaw  do not admit of devise over even of a chattel real after a estate for life and  have never allow of a devise over after a estate tail and wherever a estate be  give to one for life with remainder to the heir brown er p of his body the two  estate be unite and the estate for life enlarge by the subsequent word heir of  the body to a express estate tail and not by implication and give the whole  interest in such personal estate and therefore the give the real and personal  estate to miss Pynsent for life remainder to the heir of her body give her a  estate tail in the real estate and a absolute brown interest in the personal  estate and to put a different construction will be overturn several resolution  and endanger the property of many person it be however object that only the  dividend of the stock be give to miss Pynsent for life and not the stock  itself and from thence a be argue that the testator do not intend to devise  the stock whereas it be well know that by a devise of rend and profit of land  the land pass and by the same rule a devise of the dividend be of equal import  to that of the stock itself the dividend be the only produce and profit of the  stock that from other lose and uncertain expression in the will it have be  argue that the testator only intend miss Pynsent a estate for life and not a  estate tail but the same reason will hold in every case where a estate be give  to one for life remainder to the heir of his body that the testator intend  such person shall have only a estate for life because it be give to he express  for life and yet it can not be contend but that in such case the devisee take  a estate tail by though subsequent word it be therefore safe to adhere to  plain certain know rule of law than to determine property upon strain  construction and conjecture of intention on behalf of the respondent it be  argue a Wedderburn I don that the whole tenor of the testator will manifest a  intention in he that miss Pynsent shall at his death take no more than a life  estate either in his leasehold or freehold estate the two estate at Portney  except which be give to her absolute and that she shall also have the use only  of the furniture in his two dwell house for her life that from the death of  her father sir William Pynsent she shall have and receive the annual income  and dividend of the testator bank stock and exchequer annuity for her life  only that after her death in case she shall leave no male heir of her body the  say estate and furniture shall go to the respondent for his life with such  remainder over as in the will and that after her death and the death of her  father and for want of such her issue male as aforesaid the capital of the  bank stock and long annuity shall likewise go to the respondent for life with  such remainder over as in the will and as miss Pynsent die unmarried and  consequent without any heir male of her body in her father lifetime the  subsequent devise to the respondent of the testator leasehold estate and  furniture take place upon her death and the devise to he of the bank stock and  exchequer annuity take place upon the death of sir William Pynsent that  whatever may be contend to be the construction of the devise of the testator  freehold estate after miss Pynsents death to the heir male of her body which  be a point not in question in the present cause yet it be apprehend that the  word heir male of the body in the devise of a leasehold or chattel interest  have be construe to be word of purchase and not of limitation in order to  comply with the sense in which they be use by the testator himself and to  effectuate his manifest brown intention appear upon the face of his will that  the use only of the furniture in the testator two dwell house be connect in  the devise of a estate for life in the leasehold house and the condition annex  to that devise of her keep the building in repair be both inconsistent with  the idea of her have the absolute property therein and plain denote a  intention of her have a life interest only in the leasehold house as well as  the furniture that as to the bank stock and long annuity the testator have  distinguish the dividend and yearly income and payment thereof from the  capital by two distinct bequest videlicet in one clause he give the dividend  and yearly payment only to miss Pynsent for her life to take effect in  remainder after her father death have before give the same and in near the  same word to her father for his life which bequest to the daughter determine  by her die in her father lifetime before she come into possession and in a  distinct independent clause he give the capital after her death to the heir  male of her body it be obvious therefore that he use the word heir male of her  body as word of purchase and not of limitation for he give to the heir  something more and different from what he have before give to the ancestor and  if these word shall be so construe as to enlarge her interest therein and give  hex a title by construction of law to the capital it will be no less contrary  to the express word than to the manifest brown er p intention of the testator  that the bequest of the testator diamond ring plate and book to his intend  heir with direction to be pack up in box and keep safe till it shall appear  who shall have a right by his will to enjoy his estate show clear that he  never intend miss Pynsent shall take a absolute vest interest in the say  estate bank stock etcetera on the contrary his intend heir accord to his own  idea be not a person in be but in contingency and this be a further proof that  the word heir male of the body be mean by the testator not as word of  limitation but as word of purchase descriptive of the person who shall  eventual become entitle to his estate and the subsequent word in the will and  for want of such issue can not be construe to mean a indefinite failure of  issue whenever that event shall happen since the word themselves not only in  their natural and common import but accord to the evident intention of the  testator in the present case apply to a failure of issue at the time of the  death of miss Pynsent the devisee for life after hear counsel on this appeal  the follow question be put to the judge videlicet whether in the event which  have happen the devise to the respondent William daw Tothill of the bank stock  exchequer order leasehold estate and furniture of the house specifical  bequeathe be good and effectual or void and the Lord chief baron of the court  of exchequer have deliver the unanimous opinion of the judge that the devise  be void it be thereupon order and adjudge that the decree complain of shall be  reverse ms jour sub year p