brown case lord viscount say and seal appellant lady catherine jones and other  respondent that march Mews dig twelve see east land be devise to trustee and  their heir in trust to pay several legacy and annuity and then to pay the  surplus of the rend and profit to a during her life for her separate use or as  she shall direct and after her death the trustee be to stand seize to the use  of the heir of her body with other remainder over hold that this be a use  execute in the trustee and their heir during the life of a and that she have  only a trust in the surplus rend and profit during her life and that the  subsequent limitation to the trustee to the use of the heir of her body be a  use execute in the person entitle to take by virtue thereof and therefore  there be only a trust estate in the ancestor and a use execute in the heir of  her body their different interest can not unite so as to create a estate tail  by operation of law in the ancestor viner vol p can Eq can ab can the  honourable Frances Ellis widow one of the daughter and coheir of James  viscount say and seal be seize in fee of a undivided moiety of several message  land tenement and hereditament in Nether Norton and Oversbury Norton in the  county of Gloucester of the yearly value of pound duly make her will date the  that of December and do thereby give and bequeathe diverse small legacy to  several person in her will name after which she devise the say land and  hereditament in the word follow item I give and devise all my manor message  land tenement and hereditament whatsoever with their and every of their  appurtenance in Nether Norton and Oversbury Norton or elsewhere in the county  of Gloucester and also all my message land tenement and hereditament in  possession reversion remainder or otherwise lie in Mortlake or elsewhere in  the county of Surrey to Thomas earl of charborough in the county of Dorset Esq  and Charles Morgan of the Inner temple London Esq and to their heir and assign  for ever upon trust and confidence nevertheless and to the intent and purpose  but not upon condition that they the say Thomas earl and Charles Morgan and  the survivor of they and the heir of such survivor shall and will in the first  place out of the rend issue and profit of the say manor message land and  premise in Nether Norton and Oversbury Norton aforesaid pay and satisfy the  several legacy devise and bequest hereafter mention to be by I give devise or  bequeathe this devise be follow by a bequest of some annuity for life and some  pecuniary legacy after which be the follow word videlicet and I do hereby  authorize and appoint that they the say Thomas earl and Charles Morgan and  their heir shall and will in the first place reimburse themselves all such  necessary charge and disbursement as they shall from time to time be put unto  concern all or any of the matter herein contain and from and after their  reimbursement and payment of the say several annuity or rentcharge legacy and  interest aforesaid to be pay out of Nether Norton and brown Oversbury Norton  aforesaid and as the same shall several and respective be pay end and  determine that then the say Thomas earl and Charles Morgan and their heir  shall and will pay or cause to be pay all the rest and residue of the rend  issue and profit of the say manor message land and premise to the proper hand  of the say Cecil fiennes or to such person or brown er p person as she shall  by any write under her hand and seal direct and appoint for and during the  term of her natural life and from and after her decease they the say Thomas  earl and Charles Morgan and their heir shall stand and be seize of and in all  and every the say manor message land and premise to the use and behoof of the  heir of the body of my say daughter Cecil fiennes several and successive as  they shall happen to be in priority of birth and seniority of age and to the  heir of their several and respective body in tail general subject nevertheless  to the payment of the say annuity legacy and interest charge and hereby before  by I give out of Nether Norton and Oversbury Norton aforesaid and for default  of such issue then upon this further trust and confidence and I do hereby  declare my mind and will to be that they the say Thomas earl and Charles  Morgan and their heir shall stand and be seize of and in the say manor message  land and premise in Nether Norton and Oversbury Norton aforesaid to this  further use intent and purpose that from and after the decease of my say  daughter Cecil fiennes without issue of her body that over and beside the  payment of the say former legacy and charge by I hereby give and devise out of  Nether Norton and Oversbury Norton aforesaid they the say Thomas earl and  Charles Morgan and their heir shall and will out of the rend issue and profit  of the say manor message land and premise pay and satisfy the several gift  legacy and bequest hereafter mention that be to say I give and devise to the  say Mr Francis Twisleton my godson and son to George Twisleton of Yorkshire  the sum of pound per and for and during the term of his natural life and after  his decease I give and devise the say sum of pound per and to Mr fiennes  Twisleton for and during the term of his natural life item I give and devise  the sum of pound per and for ever to be issue and go out of my say manor  message land and premise in Nether Norton and Oversbury Norton aforesaid to  equal distribute yearly and every year for ever to and among four poor widow  of the say parish of Nether Norton and Oversbury Norton at the discretion and  nomination of my say trustee their heir and assign and from and after the  decease of my say daughter Cecil fiennes without issue as aforesaid I give and  devise the say manor message land and premise with their and every of their  appurtenance to the say lady Catherine Jones daughter to the right honourable  the earl of Ranelagh in the kingdom of Ireland mrs Frances bettenson of  Scadbury in the county of ken my say godson Francis Twisleton brown of the  parish of saint James in the county of Middlesex gentleman and to the say  Elizabeth Hugh of jews in the county of Somerset several and respective and to  the several and respective heir of their respective body lawful beget or to be  beget in tail general share and share alike subject nevertheless to the  several annuity legacy and other payment aforesaid hereby charge give or  devise in upon or out of Nether Norton and Oversbury Norton aforesaid in  February the testatrix die without make any further disposition of her estate  leave issue the say Cecil fiennes her only child and heir at law and in  Francis Twistleton one of the four devisees die a infant without issue whereby  the reversion in fee of one four part of the say undivided moiety expectant on  the death of the say Cecil fiennes come to and be vest in her as daughter and  heir at law of the say testatrix on the d of July the say Cecil fiennes die  without issue whereby three four part of the say undivided moiety of the  premise vest in the respondent lady Catherine Jones the say Frances bettenson  then the wife of Thomas Hewett Esq afterward sir Thomas Hewett Knt decease and  now the respondent lady Hewett the say Elizabeth Hugh then the wife of Thomas  Hawker decease and mother of the respondent Peter Hawker and the remain four  part descend to Cecil mignon the niece and heir at law of the say Frances  Ellis and also cousin german and heir at law of the say Cecil fiennes in  Trinity term the respondent lady Catherine Jones together with sir Thomas  Hewett and his lady and Thomas Hawker and Elizabeth his wife levy a fine and  suffer a common recovery of three four part of the say premise and by a  indenture date the that of June make between the say Thomas earl the then  survive trustee and lady Catherine Jones Thomas Hewett and Frances his wife  and Thomas Hawker and Elizabeth his wife of the first part Thomas Wyherd of  the second part and Anthony cracherode of the three part the use of the say  brown er p fine and recovery be declare to be as to one three part of the say  three four part of the say moiety of the premise to the use of the say lady  Catherine Jones and her heir one other three part thereof to the use of the  say Thomas Hewett and Frances his wife and their heir and their other three  part to the use of the say Thomas Hawker and Elizabeth his wife and their heir  the appellant be entitle to the other moiety of the premise and refuse to join  in a division or partition thereof into equal moieties and the tenant refuse  to pay a moiety of their rend to the respondent lady Catherine Jones sir  Thomas Hewett and the respondent dame Frances his wife Thomas Hawker who have  survive the say Elizabeth his wife and Cecil mignon who be entitle to one  moiety of the premise they on the that of march exhibit their bill in the  court of chancery against the appellant and Nathan izod William clark and  William brown white the tenant of the premise to have a partition of the whole  estate as against the appellant and to compel the tenant to pay a moiety of  their rend to the plaintiff from the death of the say Cecil fiennes the say  Thomas Hawker and Cecil mignon die the respondent lady Catherine Jones sir  Thomas Hewett and dame Frances his wife and Peter Hawker the son and heir and  administrator of the say Thomas Hawker in who three four part of a moiety of  the say premise become vest exhibit their bill of revivor against the  appellant and the say tenant and afterward amend the same by make the  respondent Thomas William Burman the devisee and executor of Cecil mignon and  the respondent fiennes Twisleton her son and heir who claim the other four the  part of a moiety of the premise under the say Cecil mignon party and the suit  be afterward revive accord the appellant and the tenant of the premise and the  respondent Thomas William Burman and fiennes Twisleton answer these bill and  Burman by his answer insist that he be the devisee and executor of Cecil  mignon and as such be well entitle to one four part of the moiety in question  and the rend thereof from the death of Cecil Fiennes The appellant by his  answer inter alian insist that the say three four part of the moiety do not  upon the death of Cecil fiennes without issue vest in the respondent lady  Catherine Jones dame Frances Hewett and Elizabeth the wife of the say Thomas  Hawker but that the whole moiety upon the death of Cecil fiennes come in  feesimple to the say Cecil mignon as her heir at law and that the say Cecil  fiennes be by the limitation in her mother will tenant in tail of the say  moiety or of the trust thereof or have such estate or interest therein that by  a fine and common recovery she can dock or bar the same and all the remainder  thereupon limit by the will of her say mother Frances Ellis and further insist  that Cecil fiennes be so seize of a moiety of the say premise she together  with her husband William fiennes in July by deed fine and recovery duly levy  and suffer convey the say moiety to the Lord viscount Harcourt and his heir to  and for such use as she shall by any write under her hand and seal appoint the  appellant further state that in the say William fiennes purchase the other  undivided moiety of the premise to he and his heir and die without issue in  that moiety descend to the appellant as his brother and heir that upon the  death of the say William fiennes several dispute and difference arise between  his widow and the appellant touch his real and personal estate for compromise  thereof article of agreement be make and enter into between the say Cecil  fiennes and the appellant date the d of march whereby she agree inter alian to  join in a sale of the whole estate at Norton and that one moiety of the money  arise thereby shall be pay to the appellant and as to the other moiety the say  Cecil fiennes be to have thereout pound brown and the interest of the residue  during her life with power to dispose of pound and that the residue shall come  to the appellant in Michaelmas term the appellant exhibit a cross bill against  the Lord viscount Harcourt the respondent lady Catherine Jones sir Thomas  Hewett and dame Frances his wife Peter Hawker Thomas William Burman and  fiennes Twisleton to have a performance of these article and a conveyance of  the say Cecil Fienness moiety of the say premise to which bill the several  defendant put in their answer before the end of June follow the original cause  come on to be hear before the Lord chancellor king on the brown er p the of  June and the appellant and the tenant of the premise not appear though they be  serve with process to hear judgement it be order and decree as between the  respondent lady Catherine Jones dame Frances Hewett Peter Hawker and the  appellant and the respondent Burman that a partition shall be make of the land  into moieties and that a commission shall issue for that purpose one moiety  whereof be to be allot to the appellant and the other moiety to be subdivide  into four part of which one four part be to be allot to the respondent lady  Catherine Jones and her heir one other four part to the respondent lady Hewett  and her heir another four part to the respondent Peter Hawker and his heir and  the other four part to the respondent Thomas William Burman and his heir  subject to the annuity of pound per and to the respondent fiennes Twisleton  for life and pound per and for a perpetual charity mention in the will of the  say Frances Ellis and mutual conveyance be direct to be make by the party for  make the partition effectual and the tenant be to attorn and pay their rend  accord to such partition and as to the cost of the say partition the appellant  be to pay one moiety and the respondent the other moiety thereof and as to the  cost of the subdivision the same be to be equal pay by the respondent and it  be further decree that a account shall be take by the master from the death of  Cecil fiennes of the rend and profit of the moiety to which the plaintiff in  the cause and the say Burman be entitle and that the appellant shall account  for such part thereof as he have receive and the tenant izod clark and William  white be to account for what be due from theft and the receiver appoint by the  court be to account for what be in his hand and the appellant be to pay the  respondent lady Catherine Jones dame Frances Hewett and Peter Hawker their  cost so far as he have contest their right and title to the say moiety and  this decree be to be bind upon the appellant and the say tenant unless good  cause be show to the contrary the appellant upon the usual application and pay  the cost of the default obtain a order for liberty to show cause against the  decree upon the hear of his cross cause and accord brown both cause be hear  together before the Lord chancellor king on the that of November when his  lordship be please to confirm the former decree against the appellant as to  all matter but the cost of suit which the appellant be not to pay and his  cross bill be dismiss without cost from this decree the appellant appeal  insist p York t Lutwyche that by the will of Frances Ellis her daughter Cecil  fiennes be tenant in tail of a moiety of Norton or of the trust thereof and  that by her fine and recovery in which be do upon great advice and  consideration she become seize in fee or at least of such a estate and  interest as she have power to dispose of and which be actual bind by her  article with the appellant but suppose that Cecil can not by her fine and  recovery bar the remainder limit by her mother will yet by the death of  Francis Twisleton one of the four devisees in that will without issue Cecil be  unquestionable seize in fee of his four part as have the reversion in fee and  this four part at least be bind and affect by the article that therefore the  appellant ought to have the benefit of those article so far as Cecil fiennes  have a power over the estate she have have a beneficial agreement under they  and yet as the decree stand the appellant be debar of any benefit under the  article without the least consideration for the advantage which Cecil derive  from they on the other side it be argue c Talbot n fazakerley to have be the  testatrixs intention as appear clear by her will that the legal estate during  the life of Cecil fiennes shall remain in the devisees in trust to enable they  to pay the legacy and annuity thereby give and to apply the surplus profit  during her life for her proper use and which be the more reasonable because  she be then under coverture that it also appear to have be the intention of  the testatrix that after the death of Cecil fiennes a legal estate tail shall  vest in the heir of her body as purchaser and not by descent and it be  apprehend that the construction contend for by the appellant be contrary to  this intent by change the equitable interest of Cecil in the surplus profit  for her life only into a estate tail that this construction be not support by  any rule of law there be no instance where the legal limitation of a estate to  the heir of the body of any person have be unite to a prior equitable  limitation of the surplus profit of such estate to the same person brown er p  for life so as to make such person tenant in tail by construction of law  beside such a construction be high unreasonable as it will put it in the power  of Cecil fiennes to defeat her own issue if she have any and all the  subsequent limitation in the will that Cecil can not bind the premise by the  article long than during her own life as to the three four decree to the  respondent lady Catherine Jones dame Frances Hewett and Peter Hawker and if  she can yet with regard to those three four and likewise the remain four  decree to the respondent Burman it be insist that none of they be bind by the  article upon which alone the brown appellant title depend because it appear by  those article that the occasion of enter into they be to put a end to the  dispute which have arise between the appellant and Cecil touch the real and  personal estate of his brother William and it do not appear that there be any  dispute touch the moiety of the premise now in question which be no part of  William estate but if this moiety be intend to be comprise under any general  word in the article yet they have be long since waive and depart from no  demand have be make by the appellant upon the foot of those article from the d  of march when they bear date to the death of Cecil fiennes which happen on the  d of July during all which time she quiet enjoy the premise subject to the  charge thereon nor be any demand make by the appellant upon the respondent  under the article till he mention they in his answer to the original bill  which be year after the date of they and though in conveyance be make by the  appellant and Cecil of other estate yet such conveyance neither recite or  import to be make in pursuance of the article neither be the limitation or  provision therein agreeable to the tenor of the article from whence it be  evident that they be waive and that the party come to a new agreement that it  will be a dangerous precedent if a court of equity at so great a distance of  time after the death of one of the contract party who if live may be able to  prove a express waiver of the article and after a great alteration in the  circumstance of person and thing shall decree a specific execution of they and  it will be particular unreasonable in the present case because Cecil fiennes  be dead can not now execute the power give her by the article of dispose of  pound which in consequence will give the appellant pound more than by the  article be intend for he after hear counsel on this appeal and also the judge  touch a point of law to they propose it be order and adjudge that the decree  complain of shall be affirm except as to the respondent Burman and as to he  the decree be reverse and it be further order and declare that the four part  of the moiety decree to the say Burman and his heir do belong to the appellant  and his heir and the same be to be convey to he accord by the respondent Lord  viscount Harcourt subject nevertheless to that part of the decree which direct  a partition and that the rend and profit decree to be account for and pay to  the respondent Burman shall be account for and pay to the appellant jour vol p