atkins case Lord george beauclerk versus miss dorm hear at powis house June  king by his will say I make d my sole heir and executrix and if she die  without issue then to go to Lord George beauclerk d levy a fine and suffer a  recovery of the real estate and insist she have a absolute right both to the  real and personal estate of the testator and not oblige to account Lord  Hardwicke hold the limitation over be void and can be confine to the defendant  die without issue live at the time of her decease and dismiss the bill vide  Boucher v Antram Charles Rep seal v seal p W anon Freem dod v Dickinson vin pl  ivy v ivy ante vol Trafford v Bohemia post vol Butterfield v Butterfield Ves  Stafford v Buckley Ves Garth v Baldwin Ves attorney general v hind bro Charles  Rep big v bensley bro Charles Rep glover v Strothoff bro Charles Rep Robinson  v Fitzherbert bro Charles Rep Boden v Watson Amb Everist v Gell Ves jun vide  etian Hodgson v Bussey ante note the question in this cause arise upon the  follow will of general Kirk date January miss dorm I make my sole heir and  executrix if she die without issue then to go to Lord George beauclerk he to  pay lady Diana beauclerk pound to Betty Gibbs and her grandaughter pound each  and miss dorm to keep the old woman he then give all his clothes to one  servant his horse to another and pecuniary legacy to all the rest and the will  be sign by he in the presence of three witness the bill be bring in order to  have a inventory from the defendant upon oath of all the personal estate of  Kirk and that the plaintiff interest in the personal estate may be establish  by a decree of this court and that the inventory may remain as a evidence of  the personal estate in case the contingency shall happen on which the  plaintiff become entitle the defendant have levy a fine and suffer a recovery  of the real estate and insist that she have a absolute right both to the real  and personal estate and that she be not oblige to account Mr Noel for the  plaintiff cite do versus Merrifield hear the d of October and mention in  Sabbarton versus Sabbarton Stanley versus lee p wms Atkinson versus Hutchinson  p wms forth versus chapman p wms Sabbarton versus Sabbarton case in the time  of Lord Talbot pound atkins er p Mr clark of the same side cite Leon lee case  Higgins versus Dowler p wms what be chief insist on by the counsel for the  plaintiff be the intention of the testator that if the defendant die without  issue live at her death that then Lord George shall take subject to the  payment of the pound to lady Diana beauclerk atkins Lord chancellor there be  no doubt as to the intention but then the question will be whether the die  without issue be to be restrain to the time of her death or at any time  indefinite Mr Murray of the same side cite case to show that the vulgar  meaning of the word die without issue which be leave no issue at the time of  the death have always be regard by the court Nichols versus Hooper p wms  Pinbury versus Elkin vern target versus gaunt p wms Whitmore versus wield vern  vent Ch can Bellasis versus Uthwatt Tracy atkins Mr attorney general for the  defendant insist that the whole real and personal estate be give to miss dorm  till there be a failure of issue general and if it have stand single upon the  word sole heir and executrix there can be no doubt but miss dorm will have be  entitle to the absolute property in both he cite case that be subsequent to  those mention for the plaintiff green versus rod June Fitzherbert Gibb S c  before Lord chancellor king the testator there direct his whole personal  estate shall be turn into money and place out at interest in the first place  to the use of his sister mary and in case his sister die without issue then my  will and meaning be that the money direct to be put out to interest shall be  divide between my two other sister Teresa and Frances after the death of my  sister mary aforesaid sir Joseph Jekyll hold the bequest over to be too remote  and therefore a void limitation Milward versus Milward February before the  same master of the roll one Milward make a nuncupative will direct that all  his mortgage and debt shall go to his son John and Samuel pay pound each and  in case either of thorn shall die without issue his part thereof shall go to  my wife and my two other son his honour be of opinion in the first place that  this be a tenancy in common and not a jointtenancy and in the next place that  the limitation to the wife and other son be too remote and therefore void  atkins Mr brown on the same side cite Richard versus lady Abergavenny vern  Clare versus Clare case in Chan in the time of Lord Talbot in order to show  that this limitation be to the defendant issue general and the remainder to  Lord George consequent void as be too remote as to the current of case upon  this head the former he say go too far one way and of late quite the contrary  but there be not one of the modern case where there be not some word which  show the intention of the testator that the first taker shall only have a  estate for life and therefore qualify the general estate which the word will  otherwise have give love and Windham I side Mr Ord for the defendant say all  the case cite for the plaintiff be trust in which the court lie hold of any  minut circumstance to support the intention it be allow on all hand the  testator intend miss dorm shall have a estatetail in the real estate and  unless it be likewise construe to give her a estatetail in the personal the  word will be inconsistent and have two different meaning but the construction  we contend for give the word a uniform and consistent meaning Mr Noel in reply  say he do not apprehend that one general rule be to be lie down in these case  but the court will in each particular case put such construction as will best  suit with the testator intention that there be circumstance here which show  the intention of the testator be to confine the bequest to Lord George  beauclerk upon miss dorm leave no issue at the time of her death and lie the  great stress upon the word then if she die without issue then to go c as refer  to a die without issue at the time of her death it do not follow if the court  shall be of opinion the testator have use such word with regard to the real  estate as will not take effect accord to his intention because repugnant to a  rule of law that therefore his intention shall not prevail with regard to the  personal estate atkins er p Lord chancellor there be a great variety of case  upon the head on which this arise of contingent limitation upon personal  estate and as they have grow up to a very large number they have admit of many  nicety and different determination atkins the first question be whether there  be any particular circumstance in this case that can confine the word to a die  without issue at the time of miss dorm death the case which have be cite be  most proper applicable to this question I be of opinion that though there be  some word which look this way yet in point of law they will not admit of this  construction the word then indeed first occur to I but I do not recollect any  case that have turn upon this word mere for then in the grammatical sense be a  adverb of time see Pinbury v Elkin p W but in limitation of estate and frame  contingency it be a word of reference and relate to the determination of the  first limitation in the estate where the contingency arise so big v bensley  bro Charles Rep Benyon v Maddison bro Charles Rep in the case of Pinbury  versus Elkin the word be if she shall die without issue by the say testator  then after her decease pound shall remain to the testator brother Lord  Macclesfield do not lie any stress upon the word then but construe the word  after her decease in the same manner as if it have be at her decease and so  relative to the death of the party and if the court here be to lie any stress  upon the word then it will be go a great deal too far for it be too ambiguous  to be take as a adverb of time and therefore in this case do not ascertain the  point of time but be mere relative to the determination of the limitation to  miss dorm and the contingency take place with regard to lady Diana Beauclerks  pound something plausible may be say if this be to be construe as mere  personal to her and by way of provision as a portion and not to arise unless  lady Diana survive miss dorm for then indeed a strong argument may be draw  from thence to show the testator meaning be to confine the die without issue  of miss dorm to the time of her death but this be annex by way of condition to  the devise to Lord George make it a vest legacy and transmissible though not  Payable till a future time which take away all the argument that may be raise  from its be personal to her only for a death before the contingency happen  will not defeat the legacy and so lie down in the case of king and wither case  in Chan in the time of Lord Talbot atkins thus much as to the word of  limitation and condition annex Lord chancellor then ask the counsel who they  understand by the old woman in this will and they agree on both side that it  must be Betty Gibbs mention in the precede word then say he I take the pound  to be the only contingent legacy but if this to the old woman have be to arise  upon the same contingency I shall have think the word miss dorm to keep the  old woman during her life will have show very plain that the testator  intention be that this legacy and the precede one shall take place at miss  dorm death but now I must construe the pound to Betty Gibbs as a legacy  Payable immediate and must necessary have the same construction with the  legacy that follow videlicet to one servant his wear apparel and to another  his horse which it will be absurd to say must wait the death of the defendant  the second question be whether a limitation over of personal estate after the  death of the first taker without issue general be a good limitation it have be  allow that if take so as to conclude issue in infinitum then the limitation  over be void as to real vide Fearne ex Dev but a difference have be attempt as  to personal chattel this be the very first time where it have be contend that  a limitation over of a personal thing be to receive such a construction by the  court as to mean a die without issue at the death of the party notwithstanding  there be no word in the will that indicate this to be the testator intention  the first case of executory devise be Matthew Mann ing   afterward come  Lampets case   b and several other which be all on term for year and partake  of the realty but the judge have no notion of extend it to a personalty the  next be the duke of Norfolk case select Cas in Ch vide Lord nottingham first  argument upon a contingent limitation of a personalty court of equity have go  further still and have admit of the like limitation atkins er p in personal as  in chattel real but then they have declare at the same time that they will  carry the limitation of a personal chattel or trust of it no further than the  trudge have do in a case of legal limitation of term for year Atkinson versus  Hutchinson be plain different from this though the plaintiff counsel insist  the last contingency in that case be express as general as the contingency in  the present and take it as a single independent sentence it be a authority but  the whole must be couple together and then the word if both die atkins without  issue must be construe in the same manner as the court have construe the  former clause note Atkinson versus Hutchinson wms devise of a term to a for  life remainder to the child a shall leave at his death and if the child of a  die without issue then to b the child of a die without leave any issue live at  the time of their death Lord chancellor Talbot hold this a good devise over to  b Stanley versus leigh p wms have be cite I can think this a authority because  the question there arise upon a limitation to the son or daughter of the first  taker which never take effect as there be no issue at all as to forth and  chapman I be counsel in it myself and by the note I take upon the back of my  brief it appear that Lord Macclesfield lie a go d deal of weight upon the  particular pen of this will if either of his nephew William or Walter shall  depart this life and leave no issue of their respective body these word he say  must relate to the time of their death and it will be a force construction to  have extend it to a die without issue general the determination of the case of  Pinbury versus Elkin turn as I say before upon the latter word after her  decease which be construe in the sense as at or immediate after her decease in  Nichols versus Hooper p wms the word be to be pay within six month after the  death of the survivor of the say mother and son which confine it clear to his  die without issue at the time of his death and therefore do not come up to the  present case the general argument that the sense of the word die without issue  must accord to the common parlance mean without issue at the time of his death  be only take in as a auxiliary in argue these sort of case and I do not know  one instance where the determination have turn single upon this particular  point in the case of Kelly versus rise before the committee of council I cite  the case of Taroet versus gaunt for the same purpose as the counsel for the  plaintiff do now but the master of the roll say die without issue there be  mean such issue as the first taker may have a point which must be intend issue  then live atkins on the part of the defendant several case have be cite two of  they in point Milward versus Milward indeed have less weight because there be  not a exact account of it but green versus rod be a direct authority in point  I be counsel in it and take note upon my brief of what the court say there  Lord chancellor king deliver his opinion that the main question in the cause  be whether there be word in the will to tie up the meaning to a die without  issue live at the time of her death which show very plain that he think there  can be no foundation for such a restriction unless it be warrant by the word  of the will there be several other case which may be cite particular the  attorney general in behalf of the goldsmith company of London versus hall  before Lord chancellor king Trin Geo assist by sir Joseph Jekyll and Lord  chief baron Reynolds vide Fitzgibbons Rep and vin Abr title devise p pl but I  be of opinion that none of the authority come I up to support this point  contend for by the plaintiff counsel that ex way termini as this be a  limitation of personal estate it shall be confine to a die without issue live  at the time of the death of the first taker so saltern v saltern post Stafford  v Bulkley Ves attorney general v hire bro Charles Rep big v bensley bro  Charles Rep glover v Strothoff bro Charles Rep contra Nicholls v Hooper p W  target v gaunt p W Pinbury v Elkin p W Pleydell v Pleydell p W it will be of  very mischievous consequence and introduce great confusion if tile court shall  admit of a distinction between chattel personal and chattel real see attorney  general v Bayley bro Charles Rep say contra forth v chapman p W Pleydell v  Pleydell p W Stafford v Buckley Ves the three question be in what latitude and  extent to consider this devise by call miss dorm his sole heir he give her the  whole real estate and accord to the opinion of Lord hale in king against mell  vent SC vide atkins er p Bamfield v Popham Cox p W and note a devise to a man  and if he die without issue be always construe to make a entail and if the  devise be to b and the issue of his body have no issue at that time it will be  a estatetail for the law will carry over the word issue not only to his  immediate issue but to all that shall descend from he the word issue say Lord  hale be nomen proceeding by inference and take in the whole generation ex way  termini and in all act of parliament exitus be as comprehensive as heir of the  body post for where it speak of the alienation of the donee it be say quo  minus ad exit to stay behind by appoint her executrix miss dorm be equal  entitle to the personal as there be no legacy leave to her atkins what it be  under this will that be to go to Lord George beauclerk whether one estate only  or both be very uncertain to apply the word to personal estate which whether  the testator himself have apply they to non constat will be go too far indeed  the observation arise from the condition annex he to pay pound c be very  material to show it must extend to both and then suppose the real estate have  not be barrred and miss dorm have die leave Lord George the pound it will have  be a charge upon the real as well as the personal upon the whole I do not  think the construction contend for on the behalf of the plaintiff be support  by any case whatever and therefore as the word of this will be general and  unrestrained the limitation over must be void and can be confine to the  defendant die without issue live at the time of her decease and therefore the  plaintiff bill in this cause must be dismiss