atkins case fonnereau versus fonnereau easter term see Cropton v Davies lr c p  SC cite Ves ante after the death of c f the testator Peter one of his son die  have first make his will and his brother Philip executor and residuary legatee  who bring his bill against the other child of c f and insist the share of  Peter in the sum of under the father will absolute vest in he and belong to  the plaintiff as his representative or that it be fall into the residuum and  belong to the residuary legatee only it can belong to Peter representative as  it never vest in Peter himself for it be the share only of the yearly produce  of the pound that be give to any of the child the principal be intend as a  provision for the several stirpes of each child nor do it belong to the  residuary legatee for this be a particular legacy divide from the residue and  therefore the share of Peter ought to go among the survive child Claudius  fonnereau by his will devise as follow I give and devise the sum of pound to  my executor guardian and trustee several and joint in trust to invest the same  within the term of six month next after my decease in the purchase of such  parliamentary fund or such other real or personal security as the or the  survivor of they shall think fit in trust to pay the yearly interest and  produce thereof unto all my child by my late wife Elizabeth and unto those  that shall be bear by my present wife whether when they shall have attain the  age of share and share alike and that the share of each of my daughter be pay  to each of my daughter during the term of their natural life and I will that  the interest or yearly produce of the several sum or part of the say security  which shall belong to my daughter who be or shall be marry be pay to they upon  their single and separate receipt without the control or intermeddle of their  respective husband and without their be subject to the discharge of any of  their say husband debt and I will that such my say daughter or daughter  receipt single and separate shall be a sufficient discharge to my say executor  trustee and guardian aforesaid for such yearly interest and produce and after  each and every of their respective deceases in trust to divide to each the  part or share of the security wherein the sum shall have be invest among the  issue of such of my say child who shall happen to die in such manner and  proportion as any of my say child so die shall respective appoint in and by  his or her last will and testament and for want of such appointment then in  trust to divide such part or share of the say security equal among such  respective issue of any of my say child at their respective age or age of year  and in trust in the mean time to apply the interest of their respective share  or portion towards their respective maintenance and education and in case any  such issue shall happen to decease before attain the age of year then and in  such case I will that the share of he or her or they so die do go to the  survivor or survivor of they and in case all the issue of any of my child  shall happen to die before attain the age of year to be divide equal among all  my other child or their child the child of any of my chilaren who shall happen  to be dead at the time of the decease of the long river of the issue of my say  child such issue die all before the age of year as aforesaid to have the share  of his or atkins her parent equal between they and I will that my say executor  trustee and guardian do until such time as atkins er p they shall have invest  the full sum of pound in the purchase of security for the purpose aforesaid  pay to my child out of the rest and residue of my personal estate as much as  will together with the interest of the security which they shall purchase as  they go on in purchase thereof amount to pound for each hundred yearly for  their respective part or share of the yearly produce or interest of say pound  I say of the say pound beforesaid to remain and continue in trustee aforesaid  and I do hereby declare that I give and devise the say pound to my say child  by my former wife and unto those who shall be bear by my present wife whether  aforesaid over and above the several sum of money which I have give they or  oblige myself to give they either upon marriage or any otherwise before the  sign of this my present last will and testament and the say testator by the  say will after payment of his debt funeral and legacy give and devise the  residue of his estate to his son Thomas Abel Claudius Peter and Philip to be  equal divide between they and make Thomas Abel Peter and Philip executor and  die the that of April the that of October Peter die have make his will and  Philip executor thereof and residuary legatee who bring his bill against the  other child of the say Claude fonnereau and insist that the share of Peter in  the say pound amount to pound be absolute vest in Peter and so belong to he as  his representative if not so yet the testator not have make any provision for  the contingency of any of his child die without any issue the share of such  child so die fall into the residuum of the testator estate and belong to the  residuary legatee exclusive of the other child the daughter by their answer  insist that though the contingency of a child die without issue be not in word  provide for yet it be virtual include in the more remote contingency provide  for by the will videlicet the issue of any of the child die before without  issue and that it may accord to the limitation over in that case be divide  among all the child equal the case cite for the plaintiff be Eastcourt versus  wary Comberb Newland versus shepherd a wms which Lord Hardwicke say be can see  no reason to approve of as atkins report there Ventr Hutton versus Simpson  vern Harris versus chaplin the that of February cro Elizabeth I S after the  devise of several part of his real and personal estate to several person  devise the interest and produce of the surplus of his real and personal estate  to hisgrandchildren until their age of this will pass the absolute right and  property of the real and personal estate to the grandchild after age Newland  versus shepherd p wms N B Lord Hardwicke say he can see no reason to approve  of this determination as report there for the defendant be cite the case of  Jones versus Westcombe mich term Eq Cas Abr Lord chancellor there be three  question in this case the first be if this share belong to Philip Peter  representative second if it go to all the survive child three if it fall into  the general residuum of the testator estate as to the first I be very clear it  can belong to Peter representative because it never vest in Peter himself for  nothing be give to any of the child but the share of the yearly produce and  interest of the principal sum of pound which be intend as a provision for the  several stirpes of each child as to the second question I be of opinion it  will go accord to the devise over and that it must be accord to the intent of  the testator collect from the several part of the will consider it with regard  to the contingency and as to what distinguish it from the case of Jones versus  Westcombe it be insist by the plaintiff that the contingency must happen of a  child be bear and that child die without issue before the age of or the devise  over of the share to the other child can take effect in the case of a real  estate such a construction can not be make because where there be remainder it  have be consider as a disposition of the reversion leave in the testator and  if the person to who the particular limitation be never have be in be the  remainder over take effect in Avelin v ware Ves Lord Hardwicke say he know of  no case of a remainder or conditional limitation over of a real estate whether  the first limitation be by way of a particular estate so as to leave a proper  remainder or the conditional subsequent limitation be to defeat a absolute fee  before limit but if the precedent limitation by what mean so ever be out of  the case the subsequent limitation shall take place see also Scatterwood v  edge salk Jones v Westcomb Eq ab Hopkins v Hopkins can tempt Talb Andrews v  Fulham stram be SC will SC burr SC Gulliver v Wickett will stram Hayward v  Stillingfleet ante vol Avelin v ware Ves Bradford v Foley dougl Statham v bell  Cowp Horton v Whittaker term Rep but where there be a devise of a particular  estate with a limitation over upon a contingency which be to determine the  particular estate soon than it otherwise will determine there if the precede  particular estate actual take place and the condition be not perform the  remainder will not take effect upon the expiration of such particular estate  amhurst v Litton atk vin pl S c bro par can bro p c d ed SC Sheffield v Lord  orrery atk say vide brown v cutter raym lev atkins it be say the disposition  of personal thing differ because they can be dispose of by way of remainder  and be executory which must take effect strict accord to the contingency upon  which they be limit Jones versus Westcomb be a authority direct contrary  accord to Lord harcourt opinion and of that opinion be the court of king bench  the ejectment there be for the freehold and will not determine the judgement  of this court with regard to personal estate I be of Lord harcourt opinion  upon the reason of the thing people frequent differ in expression though they  mean the same thing and it will be construe will by too great a nicety to lie  weight upon such strict form of atkins er p word when the meaning be plain I  never know a case where this court have depart from such a latitude of  construction as the court at law will have make upon a limitation of a  freehold estate in order to defeat a bequest over though it have frequent do  so to support a devise over this bring it to the intent of the testator and  there be no doubt of that for there can be no reason for a devise over in case  of the issue of a child die and not in the cage of a child itself die without  any issue at all the case of estcourt versus wary in Comberbach be report in a  book that be very incorrect and of a very different contingency and can be no  authority in the present case as to the three question if it fall into the  general residuum there be some circumstance here which make it a strong case  than Jones versus Westcomb for I think here appear a intent that it shall go  over absolute from the introductory clause of the testator will it be plain he  intend to dispose of his whole estate it be plain this be a fund detach and  divide from the general residue of his estate and the introductory word of the  residuary clause be after payment of all debt c and legacy I give the residue  this be a particular legacy and divide from what he intend to be the residue  and I be of opinion the share of Peter ought to go among the survive child in  equal share Reg lib a fol in Sheffield v Lord orrery atk Lord Hardwicke  observe that in the case of fonnereau v fonnereau the pen of the will be so  very particular that no precedent can be draw from thence