attorneygeneral versus hall July Geo two S c Fitzherbert g see Parnall v  Parnall Ch d information to have both real and personal estate appropriate to  the charity Thomas hall by his will hear date that of Feb devise inter alian  as follow I give and bequeathe unto my son Francis hall and the heir of his  body lawful beget all my real and personal estate to his and their own use  within three year after my decease but in case my son Francis hall shall  depart this life leave no heir of his body lawful beget live then I give all  and so much of my estate as he shall be actual possess of at the time of his  death to the corporation and company of goldsmith in London upon trust c f  hall die without any child and this information be bring by the goldsmith  company to have the estate of Thomas hall both real and personal estate  appropriate to the charity as direct by Thomas hall will as to the real estate  the defendant who be the executrix of Francis hall will plead a common  recovery which her husband have suffer whereby he declare the use thereof to  himself in fee and devise the same afterward to her and upon argue this plea  the court allow the same be of opinion that Francis hall be tenant in tail of  the real estate under the will of Thomas hall and that the same be consequent  bar by the common recovery so that the only question now before the court be  whether this limitation over to the goldsmith company be a good limitation  over of the personal estate counsel pro Quer the only question be whether the  devise over to the goldsmith company be a good limitation or not I beg leave  to consider it in two light saint instead of the word heir of his body the  word son have be mention and dly as it now stand with these word of the heir  of his body and saint if the word son W Kelynge have only be mention then the  devise over to the goldsmith company will have be good these executory devise  be former not know in the law and such limitation over be allow at first in  case only of chattel real as appear in m man and secure for the purpose in the  will W Kelynge er p case Rep which be the first case afterward Lampets case in  Rep be determine where these limitation be carry somewhat further and since  those case be personal mere personal chattel have be allow to have be limit  over in the present case the contingency upon which the charity be give be to  arise within the time limit by law videlicet upon Francis hall die without  issue live at the time of his death and not after a general die without issue  which will be void the word of the will be if he shall depart this life leave  no heir of his body lawful beget live then I give c heir of the body must be  heir of his body at the time he shall depart this life and the word leave and  live be very significant and express and refer to the point of time before  which be the time of Francis hall death the word then may likewise refer to  the time of Francis hall death and denote when the contingency shall happen  but though it may be in different case apply to either yet in the present case  it refer to the time and not to the contingency in question vern vern these  case show how it will have be if instead of the word heir of the body there  have be the word son and if there be other word in the will which show what  the testator mean by the word heir of his body and that he only intend heir of  the body at the time of Francis hall death it will come to the same thing and  the latter word of the will videlicet but in case my son Francis shall depart  this life c be restrictive of the generality of the former word heir of his  body as where a devise be to a and his heir so long as b shall have heir of  his body there though a by the first word take a absolute fee yet they be  restrain by the subsequent word but the word heir of the body in this case be  only applicable to the testator real estate which may be entail and not to his  personal estate which can be entail and make capable of be take and receive by  dissent but as to his personalty they be to vest a property only and then the  question will be whether this limitation over will be good vern though there  be a real estate devise by his will as well as a personal estate and the same  word pass both estate yet such a contingency may afterward be insert as in the  present case to determine the property as to the personal estate W Kelynge  counsel on the same side this limitation to the goldsmith company be good as a  executory devise executory devise be not within the rule prescribe by the  ancient commonlaw but be evasion out of it which the court of law have allow  and come into to answer and comply with the intent of the testator and if the  present word will bring this case within the know rule concern executory  devise this court will countenance this limitation and this court have often  allow such limitation over to comply with the intent of the testator though  they have not be so strict conformable to the rule as in the present case it  be say there be two contingency in this case videlicet Francis hall die  without issue at his death and also his be actual possess c for only such of  the personal estate as he shall be possess of at his Veath be limit over and  therefore the limitation over be void but I apprehend that such a limitation  may depend on a double contingency and so several of the case cite in Vernon  prove Talbot solicitor general content the limitation to the goldsmith company  be void and the information must be dismiss by will the residue both of the  real and personal estate be devise to Francis hall and the heir of his body to  his and their use as to the real estate it be a entail execute and as to the  personalty which can be entail it give a absolute property and the will limit  nothing over to the goldsmith company but what Francis hall shall be actual  possess of at the time of his death so that there be power leave in he to  alien and dispose of all or any part of it beside there be other word in the  will which show that Francis hall have the sole property of the personalty  vest in he for the word be but my will be that the company of goldsmith shall  not give my son any trouble on any account whatsoever concern my estate so  that take it for grant that Francis hall have a interest vest in the whole  personal estate and which if he have please he may have spend every farthing  the single question will be whether this limitation or executory devise to the  goldsmith company will be good or not and I think it be void vern Clergis  versus duchess of albermarle there the difference be take between chattel  personal that be vest and where the use only be devise vern Higgens versus  Dowler salk S c and the case of Richard versus lady Abergavenny be in point  where a house together with W Kelynge er p the furniture thereof be limit to a  wife and such heir of her body as shall be live at her death and in default of  such remainder over the wife have a estatetail W Kelynge in the house and a  absolute property in the furniture vern Whitmore versus wile vern be a strong  case where such a limitation of a personalty over be hold ill because it be a  interest vest vern deering versus Hanbury vern web versus web cro James pell  and brown case be the entail of a inheritance the counsel for the plaintiff do  not know what decree to pray whether only such specific part of the personal  estate which Francis hall be actual possess of at the time of his death or  whether there shall not be a decree that his representative shall account for  so much as he spend to insist upon the last be repugnant to the will because  Francis hall by the will have power to dispose of the whole as he think proper  and as to the other that make the devise over dependent on two contingency and  therefore void so that if there be a limitation over in the present case which  there can because a interest and property be actual vest yet as the present  case stand it will be a void executory devise because it be not confine to die  without issue at the time of Francis hall death the two word insist upon in  the will to confine the die without issue to the time of the death of Francis  hall be live and leave but if a man die without heir of his body he die  without heir of his body live and if he leaves no issue he die without leave  issue but for the reason aforesaid this be not material to be determine king  chancellor Jekyll master of the roll and Reynolds Lord chief baron in regard  the ownership and property of the personal estate be vest in Francis hall and  not the use only this be hold to be a void limitation to the goldsmith company  it be give a man a sum of money to spend and limit over to another what do not  happen to be spend and therefore the information be dismiss and so note a  difference between a devise of chattel real and personal