ambler case sayer against masterman devise to g S and the heir of his body the  male have the preference and succeed accord to their birth and the trustee to  preserve contingent remainder during the life of g S hold g S take a  estatetail lib Reg b foe a S c Fearns count Rem Wilmot hill ms vol doctor  Exton sayer by his will of the that of October devise several estate and farm  at Tolby Stapleton and Pepperfield in the parish of cross in the county of  York of which he be legal seize to brother Everard sayer and all other his  estate in the parish of Crof during his natural life with power of jointuring  and ambler er p after his decease to such child or child as shall lawful be  beget by he the male to be prefer before the female and they to succeed accord  to their birth and in trust to preserve the contingent remainder during the  life of Everard he give the say several estate and farm to his dear friend dr  Thomas Rundle and after the decease of his say brother and on failure of issue  as aforesaid he devise to his brother George sayer the plaintiff and the heir  of his body the male have the preference as aforesaid and succeed accord to  their birth and to preserve contingent remainder during the life of the  plaintiff be give the say estate to doctor Rundle and on failure of issue of  the plaintiff he devise to his niece mary cross and the heir of her body and  on failure of issue of the say mary to his own right heir Everard die in  January without issue the plaintiff g sayer have issue the defendant Elizabeth  sayer his only child and have contract with the defendant masterman for the  sale of the estate bring a bill for the performance of the agreement the cause  come on to be hear before Lord Hardwicke chancellor who direct a case to be  make for the opinion of the judge of the king bench afterward upon his resign  the great sea and the commissioner succeed to it application be make to they  to hear the cause which they consent to do consider themselves as judge at law  though sit in a court of equity ambler Q whether the plaintiff take a estate  tail or for life only under the will after argument at bar in which several  case be cite will Lord commissioner I have not the least doubt all the case  cite be distinguishable from the present in some circumstance or other will  consider the question by the rule of law court of equity must determine on  devise of legal estate just as court of law will do I have no doubt of this be  a legal estate I admit all the word of a will must be consider together to  find out the intention and that the intention must take place unless contrary  to the rule of law consider the word it have be argue that the word give only  a estate for life to Everard and that the second set of word must give the  same estate to the plaintiff but I be not clear that Everard take only a  estate for life if he do yet in my opinion the testator intend a different  estate to the plaintiff power of jointuring be give to Everard but not to the  plaintiff I rely on the plain word to he and the heir of his body the  limitation to preserve contingent remainder mean nothing and shall not control  the plain word the testator may intend that the elder brother shall not have  it in his power to bar the second but the second brother may bar distant  relation in all the case cite except law v Davis raym stram Atkins v Atkins  Cowp the estate be give express for life Atkins v Atkins confirm the general  rule that where plain word give a estate tail they shall not be control but by  a very plain indication in law v Davis the word be plain to show the intention  Smythe Lord commissioner if it be necessary to determine it be strong incline  to think that Everard take a estate tail if the estate have be give to  plaintiff for life and then to trustee to preserve c and then to the heir male  of the plaintiff he will have take a estate tail in remainder accord to  Duncombe v Duncombe lev and Coulson v Coulson atk ambler the direction that  the heir male shall have preference be no more than what the law say it make  no difference in the consideration of this question Garth v Baldwin Ves be  very strong for this construction that the plaintiff take a estate tail legate  v jewel wms Wilmot Lord commissioner two question saint whether the whole  inheritance be vest in trustee d suppose the legal estate not vest in they  whether the plaintiff take a estate tail or for life to saint the trustee take  only a descendable freehold during the life of plaintiff the word estate in  this case mean only the thing and not the interest in it see Lowther v  Cavendish post it be couple with the word farm I admit the sentence may be  transpose to get attention suppose they be in this case yet that will not  alter the construction by insert the limitation ambler er p to trustee next  after the limitation to the plaintiff this case will be like Coulson v Coulson  with this difference that it will not be quite so strong because the estate be  not give to plaintiff express for life a rule may be find out to determine  with precision in case of a limitation to one and the heir male of his body  the reason of the rule in Shelleys case   that where one take a estate of  freehold and after a estate be limit to the heir male of his body the heir  male must take by descent and not by purchase so as to secure to the Lord his  fruit on descent and have long since cease but it have be better if that rule  have never be break in upon I be not for break it further I can find any case  where the word heir of the body in the plural number and no word superadd have  be consider as word of purchase archer   case be in the singular number and  word of limitation be superadd Lisle v grey lev be very particular and be in  effect in the singular ambler to first and other son and there be word  superadd in walker v snow palm the word be heir male in the singular number  and no word be superadd the first taker will have a fee saucy v Lowther roll  Abr oven case cite in the king v mell vin keb col dubber v Trollop see dubber  v Trollop post Michaelmas Geo in the common plea and afterward in the king  bench in miller v Seagrave fortesc Michaelmas Geo it be hold that sergeant  miller take a estate tail in Papillon v voice p W Lord king be of opinion that  the limitation to trustee do not control the estate tail Goodright v pullen  Lord raym be strong in point Jones v Richardson be consider as a trust execute  in the case of Jones v Lord say and seal it be hold that a trust estate for  life can consolidate with a legal remainder suppose the word heir male may be  word of purchase yet there may be more difficulty attend such a construction  of the word heir of the body general in limit the estate proper among daughter  the court declare that the plaintiff be entitle to a estate tail and may make  a conveyance of the premise to the defendant masterman and direct the purchase  to be complete and be go to dismiss the bill as against the defendant infant  as nothing can be direct against her but on her counsel insist that she will  by that mean be deprive of be opportunity of appeal from the decree in case  she shall be advice so to do and pray that the decree may stand so as not to  prejudice her in that respect no direction be give relative thereto see fearne  contingent remainder et seq and the case state there see brounker v Bagot  Meriv Bennet v earl of Tankerville Ves bale v Coleman p W and the case in note  there green v staple mad measure v gee b a roe de thong v Bedford m S frank v  stovin east pool v pool b p winter v Hutchinson b c see wright v Pearson post  Austin v tailor post white v carter post the word of the will as give in lib  Reg and which correspond with the note in Mr fearne contingent remainder be I  do further give and devise after the death of my say wife to my brother  Everard sayer all those my several estate or farm at c during his natural life  with power of make any jointure or jointure upon any woman or woman he shall  marry and after his decease to such child or child as shall lawful be beget by  he the male however to be prefer before the female and they to succeed accord  to their birth and in trust to preserve contingent remainder from be bar  during the life of the say e S I do give the say several estate and farm to my  dear friend dr r and after the decease of my say brother and on failure of  issue as aforesaid I give the say several estate and farm to my love brother g  sayer and the heir of his body the male have preference as aforesaid and  receive accord to their birth and to preserve contingent remainder from be bar  during the life of the say g sayer I give the say estate and farm to my say  friend dr r and on failure of issue of the say g sayer I give the say estate  and farm to my say niece mary cross and the heir of her body and on failure of  issue of the say m cross to my own right heir the decree declare that the  plaintiff on the death of sayer without issue become ambler er p tenant in  tail of the estate in question and that he be capable by fine to bar the  estate tail in the premise and to make a good title to a purchaser and decree  a specific performance of the agreement