case the attorney general versus lloyd and other July not follow Thomas v  Howell lr Eq Ves S c I m by will date February give particular land and his  personal estate to be lie out in land to charitable use and declare by codicil  July if by the mortmain act the estate can pass to those use he give they to m  b and his heir by a second codicil of the that of march recite he have be  advice the devise of his land be void give his personal to the same charitable  use and his real estate to the defendant m b the mortmain act pass in and the  testator die the that of February on a case state for the opinion of the court  of king bench the judge certify it be their opinion these estate be well  devise by the second codicil to Millington Buckley vide Ashburnham v Bradshaw  atk this come before Lord chancellor on a appeal from the roll upon a question  arise from the will and codicil of Mr Millington James Millington by his will  date the that of February give particular land and his personal estate to be  lie out in land to charitable use then by a codicil date the that of July  recite his will and that he have devise his land atkins er p to such use but  that there have be a act of parliament entitle the mortmain act and be in  doubt whether the devise make by he to such charitable use will be good or not  and be still desirous as far as in he lie to confirm his say will nevertheless  if by the act of parliament or by atkins any construction of law thereupon the  estate be not well devise and can go to those use then and in such case I give  those land to Millington Buckley and his heir the second codicil date the that  of march recite as aforesaid that be advice the devise of his land will be  void and it be my intention the charity shall be continue and be advice my  personal estate can be give I do therefore by this codicil give my personal  estate to the charitable use before mention and I do hereby give my real  estate to the defendant the mortmain act pass in and testator die the that of  February the master of the roll on the that of December decree the will  codicil to be and that they shall be establish and the trust thereof ought to  be the defendant Millington Buckley who have attain his age of apprehend  himself aggrieve by this decree for that there be not any declaration therein  that the estate in Stretton and Shrewsbury on his arrive at will belong to he  he therefore appeal to Lord chancellor the attorney general for the cite onion  versus tire vern and the same case in Prec in Chan call there onion versus  trier and salk and sir Robert Clifton versus lady lombe Amb S c on the  construction of sir Thomas lombes will before Lord chancellor Hardwicke Mr  Wilbraham of the same side cite Ashburnham versus kirkhall ante atk where it  be certify by the opinion of all the judge to Lord Hardwicke on the that of  December that a devise of land under a will to charitable use make before the  statute of mortmain notwithstanding the testator survive the statute of  mortmain passes the land Mr solicitor general for the defendant cite  Coggershall versus Coggershall before the council in the presence of two chief  justice the ground of the determination there be a total incomplete will and  be therefore set aside Lord Hardwicke stop the attorney general when he be go  to reply for the charity and say that he be very doubtful about the  construction of his will and that he will tell they why though he do not  intend nor can he give any absolute opinion atkins this be a case which be  extreme different from all the case cite a case in which the revocation of the  former or the validity of the new disposition do not at all turn upon  collateral act or circumstance ut mere upon the word of the first and second  codicil and the whole arise upon the construction of the instrument themselves  in that respect it differ from the case of onion versus tyrer for that turn  entire upon the collateral act make use of by the testator towards the  execution of the second and the cancellation of the first will and there Lord  Cowper be doubtful of the advantage that can be take of those circumstance at  law and he conclude as it be mention in Vernon that in case it have be a good  cancel of the will at law it ought to be relieve against and the will set up  again in equity under the head of accident but how he will have come at it  there if the law have say that the first will be revoke I can see or how a  court of equity can set up a will against the heir which be revoke at law this  be the principal case of all that have be cite the reason that make I doubt of  the construction contend for on the part of the charity be these first if the  testator have intend what the relator contend for that the codicil shall be a  revocation of the first devise and a now devise only in case his will shall be  determine to be void he may as well have leave it upon the first codicil  unless only in respect of change the disposition of the personal estate for  there be occasion of alteration as to the personal estate but not as to the  real second it be a very nice thing to say that because the reason a man give  for his devise be false therefore his devise shall fail and how far that will  extend I can say but here he have put the devise upon the fact himself for the  word of the second codicil be that be advice the devise of his land will be  void c vide the word before that he be so advice be a fact in his own  knowledge and he have ground his devise upon this advice and not upon the  reality of the law though that shall atkins er p come out in the event one way  or another upon that he make his determination which he may do to quiet a  doubtful question I will not have this litigate after my death but I will  settle it myself upon some certain foundation three and this be the principal  reason I doubt whether this different disposition be put single upon the point  of law the word of the last codicil be very material it be my intention the  charity shall be continue and be advice my personal estate can be give I do  therefore by this codicil give my personal estate to the charitable use before  mention and I do hereby give my real estate to the defendant Millington who  can tell what the testator atkins mean by these word he may be advice that his  personal estate may be so much increase as to be sufficient to support the  charity for the codicil be make a considerable time after the will if he to  the whole into his consideration the point of law upon the statute that the  devise of the real estate will be void that he may make a good disposition of  his personal estate to the use of the charity and that the personal estate  will be sufficient for that purpose all these reason may be the ground of his  disposition these thing make I doubt great of the construction of this will  and it be a new point I think therefore it shall undergo a solemn  determination it be a legal question and upon a legal devise and I will make a  case and send it to the judge to have their determination upon it his lordship  accord order a case to be make on the testator will and codicil and the act of  parliament to prevent the disposition of land whereby the same become  unalienable for the opinion of the judge of the court of king bench and the  question be to be whether the testator real estate in Stretton and Shrewsbury  be well devise by the second codicil date the that of march to the defendant  Millington Buckley for life with remainder over to his first and other son in  tail male the say Millington Buckley have obtain his age of and the judge of  the court of king bench be to be attend with the case and reserve all further  direction till after the judge shall have make their certificate the judge of  the court of king bench have be attend with the case they by that certificate  date January certify that upon hear counsel on both side on the question state  and on consideration of the case they be of opinion that the testator real  estate in Stretton and Shrewsbury be well devise by thecodicil date the that  of march to Millington Buckley for life with remainder over as limit in the  codicil Lord chief justice lee Mr justice wright Mr justice Dennison Mr  justice foster on the that of may Lord Hardwicke in consequence of the  certificate declare that Millington Buckley have attain his age of year be  entitle to the testator real estate in Stretton and Shrewsbury for his life  with remainder to his first and every other son in tail male successive and  refer it to a master to take a account of the rend of all the premise in  Stretton and Shrewsbury accrue since the that of September atkins when  Millington Buckley attain and what shall be come upon the balance of the  account to be pay by the trustee to Millington Buckley