atkins case hill v the bishop of London smith and other Reg lib a fol February  the that see clarke v Hilton lr Eq Croome v Croome lt r S incumbent of the  rectory of b devise his perpetual advowson donation and patronage of the  parish church of b and all glebe land profit and appurtenance to the same  belong to g S Willing and desire her to sell and dispose of the same to Eton  college and on their refusal to Trinity college Oxford and on the refusal of  both these society to any of the college in Oxford or Cambridge who will be  the best purchaser there be in this case no result trust of the advowson of b  to the heir at law of the testator but a devise of the beneficial interest  therein to g smith with a injunction only to sell to particular society  Richard smith incumbent of the rectory of Bushey in the county of HerIford by  his will date the saint of October devise in these word as for my worldly good  with which it have please God to bless I after my debt pay and funeral expense  discharge I dispose thereof as follow first I give devise and bequeathe my  perpetual advowson donation and patronage of the parish church of Bushey  atkins er p in the county of HerIford and all glebe land profit and  appurtenance to the same belong unto my honour motherinlaw mrs grace smith  Willing and desire her to sell and dispose of the say perpetual advowson and  patronage with the appurtenance as soon as she convenient and lawful may sell  and dispose thereof to the fellow of Eton college in the county of Buckingham  and their successor or to the fellow of Trinity college in Oxford where I have  my education the fellow of Eton college to have the first offer if they will  agree to purchase it and upon their refusal or disagreement to be sell to the  fellow of Trinity college in Oxford and their successor if they will agree to  purchase it and upon the refusal or disagreement of both these society for the  purchase of the say perpetual advowson with the appurtenants thereof to be  sell to the fellow and society of any one of the college in Oxford or  Cambridge who will be the best purchaser item I give and bequeathe all my  freehold land and tenement in the parish of Oldenham in the county of HerIford  with the appurtenance unto my say motherinlaw mrs c race smith and to her heir  and assign for ever item I give to Thomas wood S and S to my cousin mary wicks  and all the rest of my good and chattel except a silver tankard which I give  to my cousin John smith I give and bequeathe atkins unto honour motherinlaw  mrs c race smith who I make my sole executrix the plaintiff the cousin and  coheiress at law of Richard smith the testator present cleave Greenhill and  grace smith present the defendant James smith to the live of Bushey the  present bill therefore be bring in order that the bishop of London may be  enjoin from accept James smith and that his lordship may grant institution to  cleave Greenhill the plaintiff insist that the testator do not intend the  present avoidance shall go to grace smith but that she ought to be consider  altogether as a trustee for the heir at law of Richard smith and more especial  as to the present avoidance the defendant grace smith insist on the other hand  that it be not a trust but a absolute devise to her on the argue this question  the first time Lord chancellor be of opinion with the plaintiff that it be a  trust in the defendant to sell the advowson under the restrictions in the will  and also for the payment of the debt of the testator and after those be pay a  result trust as to the surplus for the benefit of the heir at law and that the  presentation be in they as beneficiary and trust but his lordship a day or two  after doubt he order the case to be speak to again by one counsel of a side  and then take time to give his opinion and on the that of August give  judgement the general question on this devise be whether there be a result  trust or not on the first hear I incline to think that there be but I have  change my opinion entire the general rule that where land be devise for a  particular purpose what remain after that particular purpose be satisfy result  as instance of this general rule see Randall v Bookey vern Prec Charles S c  city of London v Garway vern Hobart v Suffolk vern Bristol v Hungerford vern  Starkey v brook p W cruse v barley p W Stonehouse v Evelyn p W Digby v Legard  Cox p W Gravenor v hallum Amb Arnold v chapman Ves Ackroyd v Smithson bro  Charles Rep Leslie v Devonshire bro Charles Rep Robinson v tailor ibidem  Hutcheson v Hammond bro Charles Rep spinks v Lewis bro Charles Rep Sherrard v  Lord Harborough Amb Robinson v tailor Ves jun admit of several exception so  Coningham v Mellish Prec Charles Roger v Roger p W mallabar v mallabar can  tempt Talb Durour v motteux Ves cook v Duckenfield post vol wright v row bro  Charles Rep Popham v lady Aylesbury Amb if I S devise land to a to sell they  to b for the particular advantage of b that advantage be the only purpose to  be serve accord to the intent of the testator and to be satisfy by the mere  act of sell let the money go where it will yet there be no precedent of a  result trust in such a case nor be there any warrant from the word or intent  of the testator to say this devise sever the beneficial interest but be only a  injunction on the devisee to enjoy the thing devise in a particular manner if  a devise land to I S to sell for the best price to b or to lease for three  year at such a fine there be no result trust so that the devise here amount to  no more than this the testator give the advowson to grace smith but if such or  such a college will buy it then he lie a injunction upon her to sell and  therefore there be two object of the testator benevolence grace smith and the  college where there be a result trust the heir at law after the particular  purpose be satisfy may by bill compel the trustee to convey to he here he can  in all event the heir at atkins law be disinherit or where the heir at law be  entitle to a result trust he may by bill compel the estate to be sell out and  out here he can not if the college shall refuse to buy this circumstance  differ the case from all the case put the word trust be not make use of and if  grace smith be a trustee it must be by construction and then the intent of the  testator must be chief consider as a guide to that construction and though  many other word will create a trust yet that must be where the intent of the  testator be apparent but here Willing and desire be more proper word of  injunction than trust see Harding v Glyn ante n atkins er p the case of Randal  v Bookey vern cite for the plaintiff be the common case of a surplus  undisposed of so likewise in the case the city of London v Garway vern no  express trust be declare and yet the devisees be in all event to be consider  as mere trustee and in the case of Hobart and the countess of Suffolk vern the  devise be upon the trust after mention the case of Coningham v Mellish Prec in  Chan cite for the defendant be a strong case against the heir at law than the  present for there the word in trust be use it be a devise of land to his  cousin a and his heir in trust to be sell for payment of his debt and legacy  and the surplus hold to be no result trust for the heir in Roger v Roger p W S  g can tempt Talb S c June the word I leave my wife sole heiress and executrix  amount to no more than devise the real and personal estate then come the word  to sell and pay his debt and if this have be sufficient to make her a trustee  it will have be so upon that inaccurate expression yet it be there hold she  have the beneficial interest in the estate and the court must in all those  case collect if they can the intent of the testator from the particular  circumstance of the case before they in the case of mallabar v mallabar that  of may there be a clear intent that the whole estate shall be turn into money  and a trust express mention and yet hold by Lord Talbot to be no result trust  can tempt Talb S c No general rule be to be lie down unless where a real  estate be devise to be sell for payment of debt and no more be say there it be  clear a result trust but if a particular reason occur why the testator shall  intend a beneficial interest to the devisee there be no precedent to warrant  the court to say it shall not be a beneficial interest as to the presentation  that happen by the death of the testator the heir at law can present for the  advowson be devise it follow the devise and can descend vide holt and the  bishop of Winchester in lev and as the heir can take by law so neither can he  in equity for the devise here take effect instant so do the avoidance and it  be a devise of the beneficial interest accompany with a injunction to sell to  particular society and no other trust if so every thing else that be  beneficial take effect immediate in the devisee atkins his lordship therefore  declare that there be no result trust of the advowson of Bushey for the heir  at law and order that the plaintiff bill so far as it seek to have the benefit  of any result trust for the plaintiff the heir at law of the testator Richard  smith in respect of this advowson and of the presentation in the avoidance  that happen by the testator death do stand dismiss and that the injunction to  restrain the bishop of London from accept James smith and grant institution to  he of the rectory of Bushey do also stand dissolve but his lordship declare  that the plaintiff the heir at law be entitle to the copyhold land descend  tothem disencumber from a mortgage which must be pay out of the personal  estate and if not sufficient then out of the teal estate charge by the will of  the testator with his debt atkins er p