case papillon versus voice refer to davenport v davenport h m at the roll Eq  can ab pl Kel in Charles a devise pound to trustee in trust to be lie out in  land and to be settle on b for life without waste remainder to trustee and  their heir for the life of b to support contingent remainder with a power to b  to make a jointure remainder to the heir of the body of b remainder over and  by the same will devise land to b to the same use and die leave c executor b  sue c the executor for the deed relate to the land that be in his hand and to  have the money lie out in land and settle decree by the master of the roll  that b have but a estate for life in the land and so not entitle to the deed  but that they be to be bring into court and that the land to be buy with the  money be to be settle on b for his life only remainder to his first c son but  by the opinion of Lord chancellor king b be decree to have a estatetail in the  land devise and consequent to be entitle to the deed relate thereto though as  to the land to be purchase that be executory and in the power of the court b  be to be but tenant for life with remainder to his first c son a devise pound  to trustee to be lie out in a purchase of land and to be settle on b for life  without impeachment of waste and from and after the determination of that  estate to trustee and their heir during the life of b to preserve contingent  remainder remainder to the heir of the body of b with remainder over with a  power to b to make a jointure and by the same will a devise land to b for his  life without peer William waste and from and after the determination of that  estate to trustee and their heir during the life of b to preserve contingent  remainder remainder to the heir of the body of b remainder over and die leave  c executor b bring his bill against the executor to have the pound lie out in  land and settle in the same manner and with the like limitation as the land be  devise by the will by which it be insist a plain estatetail vest in b and also  that c the executor shall deliver to b the write relate to the land devise he  be entitle to the inheritance for the plaintiff it be urge to be a universal  rule without any exception that where land be limit to one for life with a  subsequent limitation either mediate or immediate to the heir or heir male of  his body in all those case the tenant for life have a vest remainder in tail  in himself and the word heir or heir male of his body be word of limitation  and not of purchase which rule be say to hold in all sort of conveyance as  well in will as deed Inst b b thus in the case of king versus mell vent levinz  where land peer William er p be devise to a for life and after his decease to  the issue of the body of a by a second wife and for want of such issue to b in  fee with power to a to make a jointure on a second wife Lord chief justice  hale be of opinion that this be a estatetail in a and though the three other  judge in b b be of a contrary opinion yet upon error bring in the exchequer  Chamber the judgement in b r be reverse and judgement there give accord to the  opinion of the chief justice which be say to be a much peer William strong  case than the case at bar in regard there be in that case not only a express  estate for life with the like power for the tenant for life to make a jointure  as in the present case but the remainder be to the issue of the body of a  which be construe to give a estatetail to a though the same word in a deed  will not make a estatetail also the case of bale versus Coleman see vol be  cite as determine by Lord Harcourt where land be devise to be sell to pay debt  and after debt pay the trustee be to convey the residue of the land unsold to  a for life remainder to the heir male of his body and though Lord Cowper  declare that this be a case where the court be to direct a conveyance to be  make and therefore executory in its nature it shall be construe like article  for which reason his lordship direct the conveyance to be make to a for life  with remainder to trustee to preserve contingent remainder remainder to the  first c son of a in tail male successive remainder to the daughter in tail  general yet on a rehear before Lord Harcourt this decree be reverse be the  case of a devise of a trust of land which ought to be take as a devise of the  land itself and if this have be such a court of equity must have take the word  of the will as they find they so the decree ought to be and his lordship  accord do decree that the trustee shall convey the estate to a for life with  remainder to the heir male of the body of a which make a plain estatetail in a  and there be the like reason that the conveyance of the trust direct by the  will shall in the present case follow the word of the will that the power for  b the devisee to make a jointure be no indication that only a estate for life  and not a estatetail be intend to pass because though tenant in tail can make  a jointure yet he can not do this without destroy the estatetail by levy a  fine and suffer a peer William recovery whereas the testator intention may  reasonable be that b the intend tenant in tail shall make a jointure for his  wife without cut off the entail that in case of will legal estate or any  voluntary conveyance equity ought not to interpose or give assistance one way  or other but leave it to the law where b the devisee be clear entitle to a  estatetail have consequent a good claim to the write that the rule touch  limitation of estate where a estate for life be give to a with a mediate or  immediate remainder to the heir or heir male of his body give a estatetail to  a and that the word heir be a technical word be very well know and depend upon  insomuch that it will be dangerous to title to shake or suffer this rule to be  dispute as to the case of the money direct to be lie out in land and settle as  above if it shall be think clear as it be apprehend to be that the word heir  must be take as a word of limitation and to create a estatetail in one part of  the will where the land be devise it be impossible but that the same word of  the same man in the same will must have a uniform signification and consequent  that b must have a estatetail in the land to be purchase with the pound land  and money to be lie out in land be the same on the other side it be say that  as to the rule lie down where a estate be give to one for life with remainder  mediate or immediate to the heir or heir male of his body this make a estate  tail and the word heir be a word of limitation and not of purchase the same do  not extend to the case of a will as appear from no case have be cite to that  peer William purpose the only rule in construction of will be the intention of  the party ought to take place however improper express now it be impossible by  word to express the intention plain than the testator have do in this case and  it will be a downright violation of his intention to construe the estate  devise to b to be a estate tail for saint the estate be devise to b for his  life express dly it be to b without impeachment of waste which will be vain  word if b be to have more than a estate for life dly the estate be devise to  trustee during the life of b to preserve contingent remainder so that the  testator express his intention that the remainder limit to the issue of b  shall be contingent remainder and what can be more contradictory to this  express and plain intent than to say these remainder shall not be contingent  but give a vest estatetail to b as to the notion that the peer William er p  conveyance direct by a will shall be in the word make use of in the will it be  impossible this rule can universal hold for suppose the direction of the will  be that the trustee shall convey the land to a for life remainder to b for  ever this in a deed will not convey a fee as it will in a will and therefore  there be no necessity the word in the conveyance shall pursue those in the  will so if the word of the will have direct the estate to be convey to a f or  life remainder to the issue of his body he have none at that time bear this  will be a estatetail but in a deed it will not be so again if the word in a  will be that the conveyance shall be to a and his heir mate this will be a  estatetail but put such word into a deed and there for want of save of who  body the heir must be they will give a feesimple quod to be concession per cur  it be also observe that if the word of a will be dark and doubtful it will be  quite improper for equity to direct a peer William conveyance in such word for  that will be to decree in a court of equity a suit at law whereas the office  of a court of equity be to explain the word and or such a construction upon  they as that a proper legal conveyance may be make of the premise and  therefore it will be absurd to admit the rule lie down by the other side to be  a universal rule the case of backhouse versus well be cite which be determine  hill Ann b b during the time that Lord Macclesfield preside there where the  case be that a seize in fee devise the premise to b to hold to he for the term  of his natural life only without impeachment of waste and from and after his  decease to the issue male of his body if God shall bless he with issue and to  the heir male of such issue male and for want of such issue the testator limit  two remainder over in the same word and it be adjudge that b take but a estate  for life the estate be give to he for life only and there be a limitation  afterward to the heir male of his issue which be a description of the person  who be to take the estatetail to which it be add that however with respect to  the land devise the court may construe b to have a estatetail therein yet as  to the pound which be to be lie out in land and to be settle on b for life c  admit that the devise of the legal estate of the land devise be out of the  power of a court of equity to model and alter though the plain intention of  the party be otherwise yet this money to be lie out in land be executory plain  in the power of the court and of a court of equity too for which reason and  where no rule of law be to be break it be hope a purchase will be direct to be  make with this money and a settlement decree in such manner as that the  meaning of the party may take effect peer William master of the roll I have  not beard any case cite nor do I know of any at present where land be devise  to a for life remainder to the heir of his body this in case of a will have be  construe a estatetail in a the intent of this will be most plain but how far  consistent with the rule of law and also how far the same word heir of the  body in the same will may be construe as to the devise of land to be word of  limitation and yet in the devise of land to be buy word of purchase I shall  consider but this be anew case afterward on the of December follow the master  of the roll have take time to consider of this matter solemnly give his  opinion that as to the devise of the land in this case a estate for life only  pass to the plaintiff b with remainder to the heir of his body by purchase and  therefore the plaintiff shall not have the write deliver to he but these shall  be bring into court and that as to the money to be lie out in land and to be  settle to the same use the court have most evident power over that which  therefore shall be settle so as to make the plaintiff tenant for life only and  that his son shall take in tail male successive c accord to the intention of  the testator Reg lib b fol but the cause come afterward hill term upon a  appeal before Lord chancellor king his lordship declare as to that part of the  case where the land be devise to b for life though say to be without waste  with remainder to trustee to support contingent remainder remainder to the  heir of the body of b this remainder be within the general rule and must peer  William operate as word of limitation and consequent create a vest estatetail  in b and that the break into this rule will occasion the utmost uncertainty  wherefore the write and title deed of this estate ought to be deliver to b the  plaintiff but as to the other point Lord chancellor declare the court have a  power over the money direct by the will to be invest in land that the  diversity be where the will passes a legal estate and where it be only  executory and the party must come to this peer William er p court in order to  have the benefit of the will that in the latter case the intention shall take  place and not the rule of law so that as to the land to be purchase they shall  not be limit to b for life with power c remainder to the heir of his body but  to b for life with power c remainder to trustee during his life to preserve  contingent remainder remainder to his first and every other son in tail male  remainder over c Reg lib b fol for the subsequent proceed in this cause vide  Smythe v clay Amb and bro p c bro p c and ed Lord harcourt decree upon the  rehear in bale v Coleman be as follow videlicet his lordship declare that this  case arise upon the word of a will be much different from the several case  decree in this court upon marriage article that such article be always intend  to be carry into a further and more perfect execution that the party to such  article be to be consider as purchaser and in a court of equity ought to have  their contract execute accord to their true intent and the nature and course  of marriage article and settlement on make whereof the issue male of the  marriage be particular regard and general take as purchaser that when by the  careless pen of marriage article the contract be express in consideration of a  intend marriage and portion to settle the husband estate to the use of he and  his intend wife and the heir male of their body or the like that general  limitation have be restrain in this court when a execution of the marriage  article and agreement have be decree to a estate to the husband for his life  with a remainder to his first and other son in tailmale for that it can not  reasonable be suppose a valuable consideration be agree to be give to have a  estate so settle that the husband may destroy or bar the settlement as soon as  he shall make it but that no one case have be cite a where the like decree  have be make upon the word of a will under which the devisees claim voluntary  that in this case the question arise upon the word in the codicil and all will  ought to be construe accord to the true intent of the testator so as such  intent appear with certainty and be consistent with the rule of law and that  the same word of limitation ought to receive the same construction in a court  of equity as they have at law that the same word in a will which at law will  create a legal entail ought to be construe by this court when they fall under  a trust and be to be carry into further execution as in the present case so as  to create a equitable entail and that in this case by the word of the codicil  accord to the know rule and construction of law the testator have give to the  plaintiff a estate tail of the defendant Elizabeth bale share or dividend  after her decease and subject to her power of lease of the residue of his  estate after his debt and legacy pay and that in this case it can not be infer  with any certainty from the powder of lease give to the plaintiff that the  devisor intend he shall not have a estate tail as the word plain import  because such power of lease be more beneficial than the power of lease give by  the Henry to tenant in tail and it be admit in the plead that the debt and  legacy be pay that therefore the same construction ought to be make as if no  trust have be and then in construction of law it will be a estate tail execute  and upon the whole matter do think fit and so order that the say decree so far  as it direct convey the say four part of the say estate after the death of the  plaintiff c bale to the use of the first second and three and all and ever  other the son and son of the say c bale junior and the heir male of the body  of such first and other son be reverse and discharge and instead thereof that  the say Elizabeth bale share or four part of the say estate be convey after  the death of c bale junior to the use of the heir male of the body of the say  c bale and for default of such issue to the use of the defendant Coleman and  William bogan their heir and assign equal to be divide between they and that  the master to who the matter by the say former decree stand refer do see the  say Elizabeth bale part settle accord though this be Lord chancellor opinion  yet the question as to the land devise be give up the plaintiff have bring a  supplemental bill whereby it appear that by his father marriagearticle he be  entitle to a estatetail in many of the case on this subject the distinction  have be take and rely upon between legal and equitable estate but from Austen  v tailor Amb S c Eden do v lame burr the opinion of buller just in Hodgson v  Ambrose Doug and Jones v Morgan bro c c it seem that such distinction do not  now prevail in court either of law or equity that the rule of the two peer  William er p court be perfect concurrent on these point that in both the  intention of the testator be equal attend to and the same latitude admit in  the construction of word that where the testator use technical word only their  technical meaning must be adopt but where it can be sufficient collect from  the context that he mean they in any other sense his intention shall prevail  against their technical import and therefore a limitation to heir without far  explanation the ancestor take a estate of freehold by the same instrument can  never give a estate by purchase as decide by colson v colson atk the objection  to which case do not tend to prove that the testator use the word heir of the  body in any other than their technical meaning but mere that he intend a  estate for life only to the ancestor and a estate by purchase to the heir of  the body which the law will not permit whereas have the former intention be  demonstrable it shall have prevail see note to Thomas v Bennet ante the rule  of law not be applicable to the construction of word but to the nature and  operation of the estate or interest devise see the other case on this subject  in bale v Coleman ante vol but the distinction which have be make between  trust execute and executory seem to have occasion great difference of opinion  vide Lord glenorchy v Bosville can tempt Tal Robert v Dixwell atk wright v  Pearson fearne count Rem that edit and Amb S c S c Eden Austen v tailor Amb  white v carter Amb S g Eden bagshaw v Spencer ves bastard v Proby Cox Dodson v  hay bro c c Leonard v e of Sussex vern exell v Wallace ves this distinction  appear to be now full establish countess of Lincoln v duke of Newcastle Ves  Stratford v Powell ba be green v Stephens Ves Blackburn v stable v sing v hale  ba be Jervoise v duke of Northumberland James W Lord Deerhurst v duke of saint  Alban mad