atkins case HODGESON and other versus Bussey November S c cite Ves S c barn  Charles Rep Edward Bussey termor for year by settlement convey it to trustee  in trust to permit his wife grace Bussey to receive the rend during the term  if she so long live and after her decease to permit he to enjoy the rend  during his life and after his decease in trust for the heir of the body of  grace by Edward Bussey and for default of such issue remainder to Henrietta  Hodgeson for her life and after her decease in trust for her two son William  and Edward Edward Bussey die have never have any issue and grace his wife  survive he Lord Hardwicke hold that the whole term be not vest in grace Bussey  and that the word heir of the body be not word of limitation but purchase and  direct the lease to be deposit in court for the benefit of all party the  general rule with respect to term of year and the same rule apply to other  personal estate see beauclerk v dorm post seem to be that whenever a estate in  a term of year be limit to a person which limitation if apply to freehold  property will create a estatetail and a remainder be thereon give after a  general failure of issue or heir of the body the whole vest in the first taker  and the remainder over be void web v web p W Burford v lee Freem Ferreyes v  Robertson bunb saltern v saltern post Exel v Wallace Ves Garth v Baldwin Ves  Pelham v Gregory bro Charles p c do v lie durn and east but if there be any  clause or restriction whereby it plain appear that the word heir of the body  or issue be intend as word of purchase as in the present case of Hodgeson v  Bussey Clare v Clare can tempt Talb wither v Algood Ves sand v Dixwell Ves do  v lie durn and east Kniqht v Ellis bro Charles Rep or if the die without issue  be restrain to the death of the tenant for life whereby the remainder over can  take effect as a executory devise vide read v Snell post Lampley v blower post  vol Theebridge v kilburne Ves attorney general v Bayley bro Charles Rep in  either case the word heir of the body or issue will operate as word of  purchase indeed the court of chancery seem Willing to collect any circumstance  which may restrain the generality of the word die without issue to a die  without issue live at the death of the tenant for life Nicholls v Skinner Prec  Charles target v gaunt p W Hugh v sayer p W Pinbury v Elkin p IV forth v  chapman p W Atkinson v Hutchison p W Sheffield v Lord orrery post vol  Goodtitle v Pegden durn and east some case even go so far as to say that the  expression die without issue will of itself imply a die without issue live at  the time of the person decease Nicholls v Hooper p W target v gaunt p W  Pinbury v Elkin p W Pleydel v Pleydel p W but the modern case deny such a  construction on those word ex way termini beauclerk v dorm post saltern v  saltern post Stafford v Bulkley Ves attorney general v hire bro Charles be p  big v bensley bro Charles Rep glover v Strothoff bro Charles Rep Edward Bussey  possess of a term of year by a settlement make after marriage date January the  saint convey it to trustee in trust to permit his wife grace Bussey to receive  the rend and profit for her sole and separate use during the term if she shall  so long live and after her decease to permit Edward Bussey to enjoy the profit  thereof during the remainder of the term if he shall so long live and after  his decease in trust for the heir of the body of grace by Edward Bussey beget  their executor administrator and assign and for default of such issue  remainder in trust for Henrietta Hodgeson during the residue of the term if  she so long live and after her decease in trust for her two son William and  Edward after make this settlement Edward Bussey die have never have any issue  and grace his wife survive he the bill be bring by the plaintiff for the  discovery of the settlement and to have their interest in the term declare and  the deed secure for their benefit after the decease of the wife the defendant  grace Bussey who insist by her answer that she be entitle to the whole term  the question in this cause be whether she be so entitle or for life only  atkins er p December the that Lord chancellor give judgement the general  question he say be whether the plaintiff S be entitle to have a decree for the  secure of the deed and that depend upon the interest they have in the trust of  this term it appear in the cause that there be no issue of the wife mrs grace  Bussey the defendant the great point which have be rely on for the defendant  be that the limitation to Henrietta Hodgeson and her son be too remote to take  place and that the deed be so pen that the whole trust of the term be vest in  the defendant grace Bussey atkins second that if there have be such heir of  the body of grace Bussey they will have take the whole term and her have no  issue will not vary the case but that it be a estatetail in the defendant as  heir of the body be word of limitation and not of purchase and consequent the  limitation to Henrietta Hodgeson and her son be too remote I be of opinion  that the whole term be not vest in grace Bussey and that the word heir of the  body be not word of limitation but of purchase the general run of case make  this plain that notwithstanding they sound like word of limitation yet upon  circumstance and the intention of the party they may be construe word of  purchase and descriptive of the person who be to take archer case I   the case  of Lisle v grey go further report in sir Thomas Jones lev and raym it be hold  in that case of Lisle and grey that the word heir of the body come after the  limitation to the first second three and four son be word of purchase it be  different report in the several book I have mention but Mr justice Tracy say  in the case of legate and jewel p W that he have search the record in Lisle  and grey and that the judgement in the exchequerchamber affirm the judgement  in the court of king bench word of limitation be not proper use on term for  year and therefore it be not to be wonder at that such construction shall be  find in so many case where word of limitation be make use of in term for year  peacock v Spooner vern and hear first before Lord chancellor jefferys and  reheard before the lord commissioner who reverse the former decree and hold  the word heir of the body to be word of purchase a appeal to the house of lord  and the opinion of all the judge take and the decree of the lord commissioner  affirm as to the authority of this case see Ves another case before Lord  summer of Daforne v goodman vern and after this case follow web v web before  Lord Harcourt report in vern and more particular in p W vol than in Mr Vernon  report but not so full as it ought to be neither atkins I be at liberty to  determine this case as if web v web be out of the way as I be of opinion that  the word heir of the body here must be hold equal to be word of purchase as  they be in peacock v Spooner Dunn and Merrick hear before sir Joseph Jekyll at  the roll the that of October the that year of Geo the limitation there be  under a will in the follow word item all other my leasehold estate I devise to  Richard Merrick my executor to the follow use to John Merrick for life to  Catherine Merrick for life and to the heir of their body and to their executor  administrator and assign but in that cause a issue be direct to try the power  of the testator under a particular deed to devise and no determination by the  late master of the roll as to the point whether the word heir of the body be  word of purchase or limitation all the case that I have mention on trust for  term for year be all ground upon the manifest and apparent intention of the  party a objection have be take that such construction have be upon settlement  or will only where theintention of the party always prevail but the case of  Lisle and grey Jones lev be a full answer to this objection for there it be  not a marriagesettlement but a settle of land by John Lisle who be seize in  fee in his name and blood and it be not the consideration of its be a  conveyance on marriage or on any other account but the intention of the party  appear on the deed that always govern the court in construction in the case of  marriagesettlement the court will make a favourable exposition of word to  support the intention of the party and even in voluntary settlement atkins er  p if the word lean more strong to the one construction than to the other it  must likewise prevail the present case be more strong to this purpose than any  of the cite case for I be of opinion that it will be the same here upon the  word if she shall so long live as if it have be express give her for life only  videathe case of kin v mell vent it be allow at the bar even in case of a  freehold that if the word for life only have be insert it must have put it out  of doubt notwithstanding heir of the body have follow so here if she shall so  long live be a affirmative imply a negative at the same time that if she do  not live so long the remainder of the term shall go over to the plaintiff see  note above the reason the word heir of the body vest a estatetail in the first  taker either in the limitation of a freehold or upon a term be that it include  issue in infinitum atkins the second thing rely upon for the defendant be the  limitation over be too remote vide Higgins versus Dowler vern Clare and Clare  Cas in Eq in the time of Lord Talbot Sabbarton v Sabbarton Ditto and I be of  opinion that if the word heir of the body of grace Bussey be word of purchase  there be no limitation in tail and that it be the same as if the limitation  have run to the d d and that son or if no son then to daughter for the  intention be that it shall vest in some particular person and not go on in  succession from heir of the body to heir of the body and to executor c of the  heir of the body but it must vest in the first taker as if it have be to the  first son his executor administrator and assign for and during the residue of  the say term and for want of such issue remainder to the plaintiff heir the  reason here state be also mention by Lord Hardwicke in Ves now the word for  want of such issue will be the same as if it have be say for want of such son  or such daughter for the word such confine it to such issue as be mean by the  word heir of the body and then it be not too remote a remainder but bring it  to the case of gore v gore vide p wms I be apprehensive it may be object that  this be like the case of Higgins v Derby salk but the present differ great for  there it be say to be a attempt to entail a chattel and therefore construe to  vest in the first son to prevent the inconvenience of a perpetuity here the  word heir of the body must mean heir of the body live at the time of the death  of Edward Bussey or bear in some reasonable time after and that differ it from  all the case that have be cite upon the whole I declare the plaintiff  Henrietta Hodgeson and her son entitle to the trust and benefit of the term of  year be the reversionary term after the decease of the defendant grace Bussey  the lease of the that of July whereby the say term be create I order to be  deposit in court for the benefit of all party and direct the defendant to  deliver to the plaintiff Henrietta Hodgeson a counterpart of the settlement in  Reg lib a fol atkins er p it be observable that if a term be limit to a for  life remainder to his issue the subsequent word will not enlarge the express  estate for life but upon the death of a the whole will vest in his issue  Warman v seaman finch Charles Rep Clare v Clare can tempt Talb post but where  a term be limit to a for life and if he die without issue remainder over Lord  Thurlow both in the case of the attorney general v Bayley bro Charles Rep and  that of knight v Ellis ibidem be of opinion that as the subsequent word if  apply to a freehold will enlarge the estate for life into a estatetail by  implication so in respect to real and personal chattel it will vest the  absolute property in a the reason of this distinction between these two case  be well explain by Lord Thurlow in the place above notice and the reason why  the remainder in the first instance vest by purchase when the same limitation  if apply to a freehold will create a estatetail lev be give by Lord Talbot in  the case of Clare v Clare above cite note if in the above instance the  remainder have be limit to the heir of the body of a the whole will have vest  in a see web v web Theebridge v kilburne Garth v Baldwin and other case cite  above