case Wyndham and other against earl of Egremont in chancery that may and that  June see Horton v smith king I a tenant for life with remainder to trustee to  preserve c remainder to his first and other son in tail male remainder to  himself in fee become entitle to a charge upon the estate and die without  issue and intestate hold the charge shall go to his next of kin as personalty  and not be consider as merge for the benefit of his heir to who the estate  descend see Chester v Willis Amb and see Forbes v Moffat Ves Wigsell v Wigsell  S S Donnisthorpe v porter Amb minute book S c hill ms Henry earl of thomond  devise his real estate in trust to sell and pay his debt and legacy and after  payment thereof to convey what shall remain unsold to Lord ambler er p obryen  son and heir apparent of Lord inchiquin for life with remainder to his first  and other son in tail with remainder to Percy earl of thomond for life with  remainder to trustee to preserve c remainder to his first and other son in  tail male with remainder to the right heir of earl thomond Lord obryen die  without issue and Percy earl of thomond become entitle in possession under the  will for life and to the reversion in fee by a decree in chancery in the will  be establish and direction be give for sale of a sufficient part of the real  estate to pay such of the debt and legacy as his personal estate shall be  insufficient to pay and for a conveyance and settlement to be make of the  remain estate unsold to the use in the testator will the personal estate turn  out to be deficient to pay the debt and legacy by pound S d several part of  the real estate be sell and produce pound S d there remain unpay pound S d  Percy earl of thomond instead of raise money to pay the remainder of the debt  and legacy pay the same out of his own pocket and by indenture of ambler d  September recite the will decree the amount of the personal estate and of the  debt and legacy and what have be pay and that there remain unsatisfy pound S d  which lastmentioned sum the say Percy earl of thomond have pay out of his own  money and be thereby become a creditor on the real estate for the same and  entitle to have it secure to he so that he may have it in his power to raise  and dispose of the same when and as he shall think proper William earl of  inchiquin the survive trustee by the appointment of Percy earl of thomond  convey all the say estate remain unsold to Offley and William for year and  subject thereto to Percy earl of thomond for life remainder to trustee to  preserve contingent remainder with remainder to his first and other son in  tail male with remainder to his right heir the trust of the term be declare  that the trustee and the survivor and the executor administrator and assign of  the survivor shall at the request of Percy earl of thomond his executor  administrator or assign by mortgage or sale of the premise comprise in the  term or of a competent part thereof or by any other way or mean whatsoever  levy and raise the say sum of pound S d together with interest after the rate  of per cent and pay the same to the say Percy earl of thomond his executor  administrator or assign or to such person or person and for such use intent  and purpose as the say Percy earl of thomond his executor administrator or  assign shall by any write or write with or without power of revocation execute  in the presence of two or more credible witness appoint but so as the say  Percy earl of thomond pay and keep down the interest of the say sum of pound S  d on that July very earl of thomond die intestate never have be marry leave  the defendant the earl of Egremont his nephew and heir at law who become  entitle to the inheritance of the estate in fee and leave several nephew and  niece his next of kin videlicet six child of his brother the late earl of  Egremont and seven child of his sister the wife of George Grenville decease  Lord Egremont take out administration ambler bill by the nephew and niece  except Lord Egremont to have the pound S d and interest from the death of Lord  thomond raise and distribute among they and Lord Egremont who be all the next  of kin the cause be set down as a short cause before Lord chancellor on the  last day of cause in Trinity term Q whether the money shall be raise or  consider as sink into the estate which descend to Lord Egremont on the part of  the plaintiff it be say that as the term do not merge at law so it do not in  equity unless at some period of Lord thomond life it be indifferent to he  whether the term shall be keep on foot or not it be say to be his intention  that the charge shall continue because of the contingent intermediate  remainder which prevent his be seize of the fee on the part of the defendant  the distinction be allow as take in the several case determine upon this  question namely that where the person entitle to the charge have only a  partial interest in the estate the charge shall not sink but be raise where he  be owner of the inheritance the charge shall sink that there be no difference  between a legal charge and a mere equitable charge that in this case Lord  thomond be seize of the fee subject to be reduce to the state of tenant for  life in case the con ambler er p tingent remainder have come in be but as they  do not he continue tenant in fee to his death and so hold in Lewis bowl case  go that this be always a question between heir and executor or person claim  the personal estate and can never be a question in the life of the person  entitle to the charge and interest in the estate and then all the court have  to look to it whether the feesimple descend to the heir in possession if it do  the charge ought not to be raise Lord Apsley chancellor without hear the reply  say the rule be undoubted as lie down the question ambler be whether Lord  thomond be at any time so seize of the estate as to make a merger it must be  in the party lifetime here it be a subsist charge during his whole life he do  not take the fee by reason of the limitation to trustee to preserve contingent  remainder if he have marry his wife will not have be dowable and so hold in  Duncombe v Duncombe which determination though not satisfactory to Mr levinz  who have make a doubt at the end of his note be say to be right by Lord  Hardwicke in the case of Hooker v Hooker which be report in case in the king  bench in Lord hardwicke time p the editor have not be able to meet with any  entry of the decree in lib Reg but the minute be set out very full in the Reg  Min lib June and declare that the sum of pound S d which be secure by the term  of year be to be consider as part of the personal estate of the intestate and  the same be order to be distribute with the rest of the personal estate among  the plaintiff and the defendant the earl of Egremont in equal share the case  be reheard before Lord Thurlow who affirm the decree make by Lord Bathurst see  bro c c there be afterward a appeal to the house of lord where the decree be  final confirm see bro c c vo edn