Barnardiston king b gore and gore vide ante there be a new chief justice now  in court Mr Peer William and Mr fazakerly argue this case again Mr Peer  William be counsel for the plaintiff and state the case to be in the manner  follow the testator William gore seize in fee of the manor of barrow and the  manor of CarterHaven in somersetshire make his will in write the that of July  the manor of CarterHaven he devise for payment of his debt the manor of barrow  he devise to trustee for the term of year without impeachment of waste in  trust for the pay a annuity of per and to Thomas his old son during his life  and in case the annuity shall be in arrear he give power to his old son to  distrain for the same in the land so devise to the trustee the trust of this  term be far declare to be for payment of debt and portion for his young child  and in case his old son shall marry for raise a jointure of per annum for  every he shall have with his wife he likewise give power to his young son to  charge this term with portion for their young child videlicet the portion of  the issue male to be pay at their age of year the portion of their issue  female to be pay at their age of year or marriage which shall first happen the  remainder of these land he devise to the first and every other son of Thomas  his old son to be beget in tail male the remainder to Edward his second son  for life the remainder to the trustee in trust to preserve contingent  remainder the remainder to William his three son in like manner the remainder  to certain other person the remainder to his own right heir some time  afterward the testator make two codicil to his will thereby charge this term  with other portion and on the that of February he die after the death of the  testator Thomas the old son marry mary ware and on the second of November have  issue by her William the present defendant Edward the second son die without  issue and now William the three son bring his bill against William the first  son of Thomas the old son and whether William the defendant have any title be  the question for the consideration of the court upon this state of the case Mr  Peer William submit it that the defendant have no title he say he shall not  contend but the intent of the testator be that the issue of the old son shall  take and at the time of make of the will it be certain possible that he may  take for Thomas may have marry and have a son before the testator death and if  so the freehold will have vest in the son immediate on the testator death and  he will have take by way of a vest remainder but as the present case happen to  be it be impossible that he can take by way of vest remainder because he be  not in be at that time if he can not by way of vest remainder his Barnardiston  king b only title must be by way of contingent remainder or else by way of  executory devise his title can be by any way of contingent remainder because  there be no freehold but only a term in the trustee to support it and  therefore the difficulty to be consider in this case be whether he can take by  way of executory devise it have be say that he shall by reason that the  limitation in the will be to the issue of Thomas to be beget and not to the  issue of Thomas beget but Mr Peer William submit it that those word have one  and the same signification both in will as well as deed and for this purpose  he cite   light for he conceive then that the present executory devise be void  for three objection that may be take to it first that no legal or alienable  estate vest in the son of Thomas till the determination of the precedent term  second because the freehold be not to descend to the heir at law in the mean  time but be devise over to Edward three because the word of the will have give  he a remainder so that he must take in that way and not in any other with  regard to the first every executory devise be consider as a original  independent devise not to be execute till the time appoint for its spring into  possession which be the reason why it be call executory and in the present  case the time appoint for its spring into possession be not to be till the  term of year determine so this case be to be consider in a court of law for  the trust of the term in this court can be regard but even suppose the trust  of the term shall be regard yet still the present devise can be good because  it by no mean appear that these trust will determine in twenty or thirty year  which be Barnardiston king b er p the long time give for the expect of such  interest in the case of Scatergood and edge salk and far on this head be cite  Cr to the second objection he observe that the manifest intent of the testator  be that Thomas the heir at law shall have no benefit from this estate but the  rentcharge of per annum and therefore it will be a very extraordinary thing to  be say in a court of law that a freehold shall descend upon he and he submit  it that the freehold manifest vest in Edward the estate be in he by purchase  and when it be so it shall never be divest out of he upon any contingency  happen afterward the distinction between a purchase and descent in this  respect be take in   light and the reason for the difference be this when a  estate be throw upon one by act of law it shall be divest out of he again when  it be reasonable it shall be so because the act of law will do prejudice to no  one but when a estate be vest in one by purchase so it shall continue because  it be the party own fault that he do not provide for the contingency in a  better manner he say likewise he conceive if the freehold descend upon the  heir at law there will be a merger of his rentcharge and thereby a act of  injustice do to he then in support of the three objection he cite salk and far  he rely upon the authority which the former resolution of this case  Barnardiston king b have receive Mr fazakerly on the other side say he shall  not contend but in limitation by way of descent the word beget and to be beget  have one and the same construction but in purchase he conceive they do signify  a different description of the person for this purpose he cite the case of  Darlyson and Newman hill Ann in the court of exchequer and far rely upon lev  and raym he say he shall not contend likewise but the opinion which the judge  of this court have before give in be something against he he own they do give  their opinion that the freehold vest in Edward and that the issue of Thomas  can not take by way of executory devise because the time limit for their take  be not such a reasonable one as be limit by the law for these purpose but he  observe that William the present defendant be not bear when the court give  that opinion and therefore this fact happen since the point in question be now  more immediate before the court than it be at that time and as to that he say  he conceive that immediate upon the birth of William the estate vest in he by  way of executory devise and be then execute and that in the mean time the  freehold descend upon the heir at law he say this will be no merger of the  rentcharge because he have not the possession of the freehold so as that he  can have any profit arise from it and therefore he may well enjoy the  rentcharge out of the term notwithstanding if this devise then be to take  effect in William immediate upon his birth it certain must take effect within  the compass of a year after the life in be and to show that this court have  allow the time for these executory interest long than the life in be he cite  more roll Abr shower parliament case for the case of Hodgkins and Andrews  pasch and more particular rely upon the case of pot and pot determine by the  master of the roll the that of July and affirm by the Lord chancellor this  present term the court say that they will take time to consider of this case  before they give their opinion accord order it to stand over and on Saturday  January the court certify their opinion that the devise be good