case sheffield versus Lord orrery and other December I late d of b by his will  say that if no legitimate son nor daughter of I shall live to leave at any  time the blessing of any child behind they in such case of their die thus  without leave any issue behind they I will and direct that Charles Herbert and  his issue shall have all my estate the limitation over to Charles Herbert now  Sheffield be not too remote but warrant by rule of law vide Hodgeson v Bussey  atk Lord chancellor in this case the end of the bill be to have the benefit of  a trust create by the will of John duke of Buckinghamshire relate to  buckinghamhouse the picture statue and other part of his personal estate and  also for the rend and profit of certain estate call Pimlico receive since the  death of duke Edmund the whole depend upon the construction of the will of  duke John and two general question arise thereon first whether the whole of  buckinghamhouse or any part thereof be freehold for if so it be admit it  belong to the plaintiff the second general question be suppose the whole or  any part thereof to be leasehold whether by virtue of the limitation in the  will of duke John it do on the death of duke Edmund go over to Mr Sheffield  atkins I put the counsel upon argue this point first to prevent expense and  vexation for if this house be well limit to Mr Sheffield whether it be  freehold or leasehold then all question whether in respect to its be freehold  or leasehold be unnecessary the clause in the will on which this question  immediate depend be the clause mark No and as to the clause No and these be  only make use of forargument and explanation or take up by way of objection  the clause be as follow second clause in the first place my will and meaning  be that my dear wife shall have during her life my new build house in saint  James park with the two wing adjoin and all the stable garden court and  greenhouses thereunto belong with all my off and watercoloured picture and  statue therein except what I shall particular mention and give away otherwise  either now or hereafter but I give all these thing and this house also before  mention for her life upon this express condition only that if my say wife  shall mark again then my will and meaning be that my say house with the say  two wing before mention picture and statue shall go forthwith to my old son  and his issue and if all his issue male shall die then to my old daughter and  her issue and if I leave no lawful issue then to a certain youth call Charles  Herbert now under the tuition of Monsieur Brezy at Utrecht and if he shall die  without issue then to my two natural daughter Sophia and Charlotte now at  school in Chelsea the four clause in the next place my will be that my old son  and his issue and if he leave none my old daughter and her issue shall after  my death have all my whole estate real and personal except still what I have  give thus to my dear wife and shall give by other disposition to her or to any  other use or to my natural child atkins er p the nine clause if I shall be so  unhappy as that no legitimate son nor daughter of I shall live to leave at any  time the blessing of any child behind they in such case of their die thus  without leave any issue behind they I will and direct that the beforementioned  Charles Herbert and his issue shall have all my estate both real and personal  just in the same manner and with the same restriction the principal question  which arise under this general head be these three first whether by the second  clause the house picture and statue be absolute devise in all event to duke  Edmund so as to receive no restriction or alteration from the several other  clause in the will atkins second whether the house picture and statue mention  in the second clause be comprise in the that and that clause or not three  suppose they be comprise in the that and that clause whether the limitation  therein contain to Mr Sheffield be warrant by the rule of law or be too remote  as to the first it be insist for the defendant that this be a devise to the  duchess during her widowhood and the limitation to duke Edmund be to take  place either on the marriage or death of the duchess and if it be allow this  be a estate give to the duchess during her widowhood it be a vest remainder in  duke Edmund and the limitation to Charles Herbert be too remote on the other  side it be insist that this clause must be construe accord to the word and  that no estate be vest in duke Edmund but on the contingency of the duchess  marriage I ant of opinion that upon the whole will the limitation to duke  Edmund be but a contingent remainder and to take effect only on the duchess  marry again the word be upon this express condition only that if my say wife  shall at any time marry again then my will and meaning be that my say house c  shall go forthwith to my old son and his issue I admit the authority cite for  the defendant to be as they be state but I do not see that any conclusive  argument can be draw from thence to influence the present question the first  case be Jones versus Westcombe Eq Cas Abr that case be thus a possess of a  long term for year devise it to his wife for life and after her death to the  child that she be ensient with and if such child die before it be then he  devise one three of the term to the wife her executor c the wife be not  ensient and the question in the cause so far as it relate to the present point  be as the contingency upon which the devise to her be to take place never  happen whether the devise to the wife of the three part be good Lord Harcourt  deliver his opinion that the devise be good the ground of his opinion be that  the word shall be construe as if they have be if such child fail before it be  Fonereau versus Fonereau S c atk before Lord Hardwicke easter term this case  be determine near upon the same reason but the pen of that will be so very  particular that no precedent can be draw from thence brown versus cutler  Raymond and in shower and in lev under the name of Luxford versus check the  case be atkins this John church be seize in fee have four son Burgundy Robert  Anthony and John make his will and thereby devise his estate to his wife for  life if she do not marry again but if she do then that his son Burgundy shall  present after his mother marriage enter and enjoy the premise to he and the  heir male of his body remainder to testator other son in like manner with  remainder over the testator die the wife enter and die without be marry the  plaintiff claim as the right heir of the testator be his grandaughter the  defendant claim as heir male of the body of the testator the question be  whether as the wife never marry a good estatetail be create by the will the  court hold it be a good entail for that by the whole scope of the will it  appear that the testator intend a entail and rather than the intent of the  test cor shall be defeat the court construe the word in such a manner as to  make it a entail thus it be report in levinz and Raymond seem to have report  his own argument rather than that of the court this be the strong case cite  but differ material from the present the pen be different there after the  devise be add these word if she do not marry again which restrain the original  limitation and be the same as if they have be to the wife for life if she so  long continue a widow there be no such word in the case at bar in the original  limitation but I do not lie and exception as to my wife atkins er p much  weight on this the case appear to I to differ in substance there be no word in  that will which can substantiate the testator intent without construe it a  estatetail otherwise the testator intent will have be manifest defeat the  court therefore be constrain by necessity to make such a construction as will  satisfy the testator intent for this be the very reason give by Mr justice  levinz in the present case there be no such necessity for such a construction  for the subsequent word be sufficient to express his meaning that after duke  Edmund death without leavingchildren it shall go to Mr Sheffield and the  intent of the duke be more effectual answer by this construction than any  other a general rule be lie down by the counsel for the defendant that where a  testator give a particular estate to a person and after give the remainder  over upon a contingency which contingency be to determine that estate soon  than the estate will otherwise be determine though the contingency do not  happen yet the limitation over hall be good after the determination of the  first estate I know of no such rule for the case which can be put depend upon  particular word and the intent of the party but there be a express authority  that there be no such rule atkins amhurst versus Litton this be hear on the  that of march in the house of lord bro par can bro p c and ed S c the case be  this the testator devise a estate to his son in tail remainder to Beningfield  for life upon condition that he shall change his name to Stroud and if be do  not he declare the devise to be void and give it over to George Darnelly with  diverse remainder over the son die without issue beningfield perform the  condition and take the name of Stroud and die the question be whether the  estate upon the death of Stroud beningfield go over to the remainderman or  belong to the heir at law this cause be first hear in when this court direct a  case to be make for the opinion of the judge vin pl S c whether the  remainderman be entitle which turn on this question if upon the determination  of the estate in Stroud beningfield by his death and not by his nonperformance  of the condition the remainderman shall take any estate after several argument  all the judge of the court of king bench be of opinion that the remainderman  shall take no estate and their opinion be confirm by the house of lord so that  this seem a express authority there be no such general rule of law as be lie  down by the counsel the next question be whether the particular devise by the  second clause be comprise in the four and nine clause I be of opinion that the  general remainder after the duchess life do fall within the four and nine  clause but it have be first object that the four clause be residuary and  express except and take out the particular thing devise by the second clause  and not the estate and interest only in those thing I think this be contrary  to the word for the will in this clause mention all his whole real and  personal estate and I think the exception take out of it only the interest  give to the duchess and not the thing themselves and this be support by  Wheelers case and many other next it be object there be a different  disposition in the four clause from that in the second the estate in the  second be limit to Du Edmund and his issue male and by the four to duke Edmund  and his issue general I admit there be a difference but that see ms a mistake  in the second clause and be set right by the four clause by make the estate  and house go together if these particular be comprise in the four clause they  be still more clear comprise in the nine the word in this clause be not only  very general all my estate real and personal but in the nine clause the  subsequent word be more atkins particular adapt to show that the estate and  interest only be save to the wife and not the subject or thing themselves the  word be with the same exception as to my wife and the word restriction point  out express a limit interest but there be some objection which have be take  first it have be object that the eight clause be coextensive with the nine and  consequent if the house be comprise in the nine it must be in the eight for it  be that all thing comprise in the eight clause be direct to be sell and  consequent the house picture and statue must be sell contrary to the duke be  manifest intent this be clear otherwise for by the eight clause the trustee be  not direct to atkins er p sell but to dispose of all his real and personal  estate and therefore the word dispose do not import to sell but to manage to  the best advantage for the family and the subsequent word which direct to buy  land be confine to money and can extend to the house statue or picture and the  general direction to sell be constrain in the fourteenth clause the three  question be that suppose the particular devise b the second clause be comprise  in the four and nine clause whether the limitation over be warrant by the rule  of law concern the limitation of term or whether they be not too remote this  seem the plain point of all and fall within the distinction of the case on  this head the word be these if I shall be so unhappy as that no legitimate son  c vide the word it be clear and certain that no limitation over of a personal  thing can be admit after a die without issue general but if this be confine  within a life or life in be or within ten month or the birth of a child or in  case of the death of such child before the age of twentyone or if limit on a  contingency to a person who never take the limitation be good see Mr Cox note  to Higgins v Dowler p W this have be determine in many case particular Higgins  versus Dowler vern Stanley versus lee p wms Sabberton and Sabberton case in  Lord Talbot time c in this present case it be very clear that the word be  restrain to legitimate child of duke John die without issue live at their  death the word be if no legitimate son c shall live to leave any child behind  they in such case of their die thus without leave any issue behind they I will  and direct c in short few case be so restrictive the first word speak of his  immediate issue the subsequent be extend to more remote issue but still be  restrain to the case of die thus c so that no word can be more restrictive in  the case of Pinbury versus Elkin vern a liberal construction be make to comply  with the testator intention atkins in Sabberton versus Sabberton it be  determine on these word in case they shall not leave any lawful issue forth  versus chapman p wms seem a authority in two respect the case be this Walter  gore by will devise all the residue of his estate real and personal to John  chapman in trust for the use of his nephew William gore and Walter gore during  the term a lease and as to the remainder of the estate as well as his freehold  house with all the rest of his good and chattel whatsoever he give to his  nephew William gore and if either of his nephew William gore or Walter gore  shall die and leave no issue of their respective body then he give the  leasehold premise to the daughter of his brother William core and the child of  his sister Sidney price the question be whether the limitation over be good or  too remote sir Joseph Jekyll be of opinion it be too remote but Lord  Macclesfield decree this limitation good upon the word leave issue Mr William  seem mistake in the second note on this case where he say by the will the  limitation over be express restrain to the leasehold for upon look into the  case it appear that both freehold and leasehold be devise by the same word but  probable the limitation of the real be overlook and so omit by the register  some distinction or objection have be make by the defendant counsel first that  in the present case there be a limitation in tail precedent to the limitation  by the nine clause if this be admit yet a general limitation may be restrain  or turn into a particular contingent limitation by subsequent word suppose  there be subsequent word sufficient for that purpose as be determine in the  case of lamb versus archer salk another objection be that in the present case  a real estate be join with a personal and therefore the same construction  ought to be make of the word I do not see any reason why different  construction may not be put on the same word to say they can be contrary to  the case of forth versus chapman for there the freehold and leasehold be give  by the same word vide Ves and yet Lord Macclesfield make a different  construction that the intent of the atkins testator may prevail and I think it  very reasonable to take word in a different sense with atkins er p regard to  the different estate to support the intention of the party ut res to greater  extent to be strong how to pass away a three objection be that the testator do  not intend to create a particular contingent limitation of the leasehold  estate to Mr Sheffield distinct from the freehold this be beg the question  possible the testator intend a strict settlement and though it can have its  full effect with regard to one estate if there be word sufficient for that  purpose it may have effect with regard to another the testator manifest intend  a full disposition of his estate and it ought to be carry into execution as  far as may be accord to his intention many case have be cite but I think there  be none that come up to the present Lord George beauclerk and miss dorm before  I June ante atk be after a general die without issue and therefore the  limitation over can not be good green versus rod Trin t Geo Fitzgibbons be  much the same that be if a sister shall die without issue general the estate  be limit over the counsel will indeed have bring this case to have be like  Pinberry v Elkin p W S c by observe on the word after her decease but Lord  king observe that to the word after her death be add the word in manner  aforesaid which manifest make it a general die without issue and upon that  ground determine the limitation to be void therefore upon the whole I be of  opinion that the limitation over in the nine clause be warrant by the rule of  law another question have be start whether the house picture and statue do not  fall within the fourteenth clause and therefore must be sell which it be  insist defeat the intent of the testator as much as the other construction  will have do I be of opinion that the house picture and statue be not direct  to be sell the word in this clause be all my money and all other my personal  estate not otherwise give or dispose of I understand these word to mean that  such as he have give away be not to be sell particular estate and interest in  any part of his personal estate can not be sell but the remain interest may be  sell unless so settle as not to be sell I conceive that the house picture and  statue be so fetter as that the remainder after the interest of his wife can  not be intend to be sell the duke direct the thing to be sell as soon as  convenient may be but they be so clog by the atkins limitation that no sale  can take place in any reasonable time therefore I rely on the second clause as  a sufficient declaration of the testator intention that this part of the  personal estate shall not be sell all I have say be strengthen by some general  consideration this be a entire mansionhouse design for the seat of the family  can the testator design it shall be mangle and cut to piece that it shall be  sever from the bulk of the estate upon failure of his legitimate issue he have  direct his natural child to take his name and arm and therefore nothing can be  more opposite to the duke be intention than the construction contend for by  the defendant the plate be give to the duchess during her widowhood and be not  influence by any of the clause but fall into the bulk of the estate therefore  the residuary interest may be sell during the life of the duchess Lord  Hardwicke decree that the defendant the executor of the late duchess of  Buckinghamshire do deliver the possession of Buckingham house with the two  wing adjoin and all the outhouse garden c thereunto belong to Mr Sheffield and  also all the statue and all the oil and watercoloured picture upon oath which  belong to John the late duke of Buckinghamshire and be in the house at the  time of his death and to deliver also upon oath all the deed and write to Mr  Sheffield and as to the plate which belong to the testator at the time of his  death that such part thereof as be remain in specie and in the custody of the  defendant be deliver upon oath to such person as the master shall appoint and  that the same be sell and the money arise by such sale be apply in like manner  as the testator personal estate not specifical bequeathe be by the former  decree direct to be apply and as to such of the plate as be not now remain in  specie the master be to inquire what part thereof have be convert by the late  duchess of Buckinghamshire or the defendant and take a account of the value of  such part of the plate as have be so convert and what shall be come on the  account for the plate so convert be answer by the executor of the duchess out  of her personal estate in a course of administration and that the amount of  the plate so atkins er p convert be apply in like manner as be direct by the  former decree concern the testator personal estate not specifical bequeathe  and as to all the land in Pimlico admit to have be part of the freehold estate  of John duke of Buckinghamshire he order that the tenant pay the arrear and  grow rend to the plaintiff and that a account be take of the rend accrue since  the death of Edmund late duke of Buckinghamshire which be receive by the  duchess in her lifetime and what shall be come on that account be pay to the  plaintiff by her executor out of her personal estate in a course of  administration atkins his lordship will not allow any cost to the duchess  executor but direct if they give Mr Sheffield any unnecessary trouble in  respect to his obtain the possession of the house statue and picture that Mr  Sheffield shall be at liberty to apply to the court for the cost of this suit  to this time against these defendant