case abbot against burton a recovery suffer of air estate in feesimple will  not alter the nature of the descent and therefore if husband and wife he be  seize of land in right of the wife by descent ex part of a mother suffer a  recovery to themselves for life with remainder in tail remainder to the right  heir of the wife with a power to the wife to dispose of the reversion in fee  and they die without issue and without make any disposition of the reversion  the estate shall descend to the heir of the wife ex part of a mother S c salk  S c comy a be seize in fee in right of his wife of land which she have by  dissent on the part of her mother the husband and wife by deed covenant to  levy a fine which be thereby declare shall be to the use of the conusees and  their heir to make they tenant to the prcipe in order to suffer a common  recovery and afterward such recovery be have accord which by the same deed be  declare shall be to the use of the say a for his life and to his say wife for  her life and then to the first and every other son of their two body in tail  male remainder to the right heir of the wife with a proviso or power for the  wife during the coverture to dispose of the remainder or reversion in fee as  she shall think a and his wife die without issue and without any disposition  make by the wife of the say remainder or reversion in pursuance of the say  proviso or power this case be find special the question be whether the lessor  of the plaintiff who claim as heir to the wife on the part of the mother have  a title to these land or whether the defendant who modern report claim the  same land as heir to the wife on the part of the father have a title to they  the court of common plea unanimous give judgement for the plaintiff Trevor  chief justice deliver the opinion of the say court to this effect in the argue  of this case it have be insist on for the defendant that there be a difference  between a use result by implication of law and a use limit by express word and  Counden v clerk a hob but see Godbolt v freestone salk and Harris v bishop of  London Peer wms where the case of Counden v clerk be deny to be law a and dyer  have be cite for that purpose but we be to consider how this point stand  before the statute of use before that statute the law consider the estate of  the land and the use of the land as two distinct thing and therefore before  that statute if a man have make a conveyance either by deed of feoff or any  other legal conveyance be may therein by express limitation have declare the  use of the land or if there be no express limitation the law give it back to  he again for he be not to pass away the pernancy of the profit without some  consideration or estoppel by express limitation so that a man may at commonlaw  have separate the use and the estate and though the use and pernancy of the  profit be neither create nor guide by the commonlaw yet the law too notice of  they and that beneficiary and use have a remedy by subpoena so that this use  be take notice of as distinct from the land even at commonlaw then come the  statute Henry c and what alteration that make be to be consider this statute  execute the possession of the land in the same plight and manner as the use be  before therefore as this conveyance be this ancient use which result back be  not a new use for it must be a old use b lev salk and note to hark   light a b  if it result back as not dispose of and so much of the ancient use still  remain in he as be undisposed of now if the use will modern report er p have  go this way before the statute it will still go the same way since the statute  it be the same thing whether the ancient use come back by implication of law  or by limitation of the party for that the construction of the law be find on  a supposal of the modern report intention of the party and will convey and  carry the use the same way as it be suppose the party will have do now if the  law be so in the case of a result use which arise by implication of law what  reason be there it shall have a different construction where there be a  express declaration of the party especial since this declaration make no  alteration of the estate and the other use limit to a and his wife be only a  new interest arise out of the conveyance only because it be not so large a  estate as the fee be before but where the limitation be in fee it make no  alteration because the one be as large a estate as the other and it be still  the same residue remain in the wife which she have not dispose of before that  be a part take out of the whole and of the same nature as the other be and  this appear so not only from the reason of the thing but there be other  authority also which seem to settle this point roll Rep     Inst and it be all  one whether this ancient use in fee be create by implication of law or by  express limitation of the party if it be of the same estate in the case of  Godbolt v freeston a lev a these authority be law my brother who argue for the  defendant endeavour to difference this case from that in levinz and insist on  two thing first that this be not a immediate conveyance as a feoff to a man in  fee but that here be a covenant to levy a fine which be to be to the use of  the conusees and their heir with a intent to have a common recovery and  hereupon the chief objection be that not only the legal estate but also the  use pass to the conusees both in law and in equity so that when a recovery be  suffer this use in fee must arise out of the estate of the conusees this carry  the case a step further than that in levinz and it be fit I shall give a  answer to it now this opinion seem to I to be ground on take this common  recovery in a wrong sense for this fine and recovery may modern report be take  as two different distinct conveyance and take it as such it be subject to this  objection but as it may be take as two several it may as well be take as one  single conveyance and the deed the fine and the recovery may well be take as  several part of one and the same conveyance which be the case in question and  easy resolve for where such a conveyance be make by deed fine and common  recovery though the estate do move from one to another as conduit yet the  estate original move only from the conusor and the estate be always in a  manner in he as if the estate be declare to one for life remainder in tail and  no limitation of the use of the fee the use shall result back to the conusor  and not go to the conusees or recoverors and so if there be a limitation of  the use of the fee that use shall and must arise out of the estate of the  conusor and not out of the estate of the recoverors William case in the queen  bench be the same as this express there be a power of revocation and a  covenant to levy a fine and after that be do it be question whether the fine  levy have not destroy the power but it be hold that the deed and the fine be  but one conveyance and not any destruction of that power be contain as it be  in one and the same deed they both make but one conveyance and from the very  nature of the thing be to be esteem only as several part of one entire thing  and if the use be to the conusees in fee in this case it be not to give they a  estate in the land but in order to suffer a recovery and their estate be  determine by the recovery be to they for that particular purpose only but as I  say the estate move original from the conusor what he have not part with be  still in he and therefore so much thereof as be not declare upon the recovery  shall be still to the old use the nature of the common recovery be but as a  instrument for raise of the use the second thing insist on for the defendant  be that here be a power reserve to the wife and this it be say have alter the  estate it be subject and subservient modern report to a new power for that now  she may dispose of it in another manner than she can do have it be only her  old interest but I do not take this to be any new use or to have alter the old  estate a see burst v earl Winchelsea burr a it be only a right or power of  dispose of the inheritance which modern report er p otherwise she can not have  do this be only a new qualification of the old estate where a estate have a  new qualification depend upon a new contingency or where a estate be make  liable to be dispose of in a new manner such power until it be execute do not  alter the former use of the land if she have pursue the power no doubt all  those use have be new use because in such case there have be a new estate  create out of the old estate and they will have come in as if their estate  have be particular limit but before that power be execute she have only her  ancient inheritance and the former estate still exist if a man convey a estate  to the use of such person as he shall appoint by write in the presence of a  and b till he have execute this power the use of the fee be the same as it be  before and subject to be determine only by the execution of such contingent  power which by such new provision do subsist upon and affect the land and till  that be execute he be tenant in fee as he be before so if a man make a  agreement to marry his son and it be agree that the use shall be to the man in  fee till the marriage take effect this be still the old use but determinable  upon a new contingency which he have subject it to by this new conveyance so  that this power will not alter the estate at all and until the power be  execute in this case she have her old estate in her I e the residue of what  she have not dispose of which be the remainder in fee which be derive to her  ex part of a mother the plaintiff ought to have his judgement b see price v  Langford show S c salk S c Carth S c holt Harris v the bishop of London Peer  wms Armstrong v woolsey will Tregonell v Strachan stram S c will S c from a  manuscript note of Lord Kenyon term Rep notorious facts Alston v well dougl  Hutcheson v Hammond brown c c and roe on the demise of crow v Baldwere and  other term Rep b modern report michaelmas term the seven of queen whether in  the queen bench sir John holt Knt chief justice sir John Powell Knt sir  Littleton powys Knt sir Henry gold Knt justice sir Edward Northey Knt  attorneygeneral sir Simon Harcourt Knt solicitor general