case the countess OF Bridgewater against the duke OF bolton a testator be  seize of certain feefarmrents of land and of i devise his land to a for life  with a remainder in tail and all his i and five thousand pound to his soninlaw  b all which I give and devise to b his executor and assign together with all  my plate and jewel and all my other estate real and personal not otherwise  dispose of to be give by he to his child as he shall think convenient I sole  trust to his honour and discretion that he will give they such provision as  will be necessary for they and whereas I have contract for the sale of my  feefarmrents my will be that if my debt shall not be satisfy out of my other  estate my executor whereof b be one shall and may sell some part or all of  they for payment of they notwithstanding the rend be not devise by this my  last will the question be whether b be entitle to the feefarmrents in fee and  it be hold that the rend pass by the word all my real and personal estate for  the word estate be genus generalissimum and include all thing real and  personal S c Eq Cas ab S c holt S c salk special verdict upon a feign issue  out of chancery to try whether the late duke of Bolton do by his last will  devise certain feefarm rend to I earl of Bridgewater in fee the special  verdict find that the say duke of Bolton at the time of big death be seize of  several lead and coal i and several mill in the county of Westmorland and of  diverse feefarm rend in Berkshire and of diverse other land and tenement and  make his will in haec word first he give several land and tenement to Lord W  paulet with remainder to the first and every other son in tail c be further  give he eight thousand pound to be pay by big executor then he give to I earl  of Bridgewater his soninlaw five thousand pound and all his i which he hold at  the earl of Burlington and thanet c and then come the clause in question all  which I give and devise to my say soninlaw I earl of Bridgewater his executor  and assign together with all my plate and jewel and all other my estate real  and personal not otherwise dispose by this my last will for to be give by he  to big child as be shall think convenient I sole trust to big honour and  discretion c that he will give they such provision as will be necessary for  they and another clause be whereas I have contract for the sale of my feefarm  rend my will be that if my debt shall not be satisfy out of my other estate my  executor whereof the earl be one shall and may sell some part or all of they  for payment of they notwithstanding the rend be not devise by this my last  will this case have be three several time argue at the bar holt chief justice  now deliver the opinion of the court thus four thing be considerable upon this  will first whether by this clause whereby the residue of the duke estate both  real and personal be devise to the earl of Bridgewater the feefarm rend do  pass by virtue of the general word residue of all my real and personal estate  leave out the word not otherwise dispose c modern second suppose they do pass  of what estate whether in fee or only for life three to consider the word not  otherwise dispose of together with the former word and fourthly whether  consider other clause scatter in the will compare with this the rend will  thereby pass as to the first matter the duke of Bolton after several  disposition in his will give big personal estate to the earl of Bridgewater  and then give the residue of big estate real and personal to he sure the rend  pass by the word estate for that modern er p word be sufficient to pass a  freehold as well as a chattel the word estate be a genus generalissimum see  Cowper v Martin term Rep a predicable of two species that have their  difference whereby they be divide that be estate real and estate personal  estate real be genus subalternum and have its species too that be estate real  in fee or for life and so be estate personal in like manner to be branch into  chattel real and chattel personal and it have that difference of a chattel  real not because it be a real estate but because it have a real extraction if  a man seize in fee make a lease for year the lessee for year have a chattel  real because his estate be derive out of a real estate but still it be not a  real estate for it be testamentary and devisable by will at the commonlaw by  the owner so that if it be of land in knight service or in capite the owner  can not devise the land for a term but if he make a lease for year of it then  it become a chattel in the lessee and consequent devisable so that the word  real estate can be satisfy without a freehold at the least pass for a chattel  real be no real estate this be no new question for it appear Ro ab style that  the word estate comprehend both freehold and chattel real and personal  especial if the word real and personal be add it be true that by a devise of a  man estate real and personal a freehold will pass if these word come not  accompany with other particular word which express a species of a inferior  nature and which only can extend to a chattel and there the generality of this  word estate shall be restrain and explain by the precedent particular word  accord to the rule in   sand sand and abundance of other book I modern answer  the rule be good and general especial where the particular word comprehend and  express a thing of a inferior nature to the general word subsequent and the  general word be put without their divide difference for there indeed the  generality of they shall be control by the bind of the particular precedent  word but where the general word do put the proper difference of particular and  beside take a high species than the particular mention before as in this case  it do by the word estate which be a high word than mention in the precedent  particular and real and personal the proper difference there the general word  shall overreach the particular before as if in the archbishop of Canterbury  case   a the word have be and all ecclesiastical person of superior or  inferior rank they will have take in archbishop bishop c a man seize in fee of  land and of other land by mortgage not forfeit devise first all his land in  fee to a and all the rest of his good chattel estate mortgage debt c to c it  be hold Wilkinson v Maryland cro car roll Abr b that no freehold pass and very  right for there the word estate come with particular word without put the due  difference as be do here it may be object that the word residue be a word of  relation and therefore to be confine by its relation to something give before  and whatever be before give be personal therefore the word residue be to be  understand of personal estate but I answer that this word residue be not to be  understand as only applicable to the next immediate clause of devise to the  earl of Bridgewater and suppose it be so yet that will not hinder the earl  from take a estate of freehold for it must refer to all the other clause  whereby a estate be before give and a estate of freehold be devise before why  then may not residue relate to it suppose a man devise the manor of dale to a  and the heir of his body and have other land and devise the residue of his  estate to I S and his heir shall not both the reversion pass and relate to the  first as well as the last as also his other land if a testator devise all he  be worth it will pass real as well as personal estate Huxtep v Brooman bro Cas  in Ch a therefore the word residue if it must relate must relate to estate  both real and personal see Davis v sander Bl Rep Cowper b but for argument  sake suppose it shall only relate to a thing of the same kind that be devise  to the earl before in this clause a man have a estate consist of two part that  be real and personal his personal estate be as much a part of his general  estate as his real estate be and suppose be give some of his personal estate  away by will and in the same modern er p will give the residue of his estate  real and personal away shall not this pass the freehold as well as the rest of  his personal estate sure there be no doubt of itSee tanner v Morse case tempt  Talb S c under the name of tanner v wise Peer wms and do on demise of bucket v  chapman h Bl Rep c but it be a objection that this clause be not only in  company with a clause that give no more than a personal estate but also that  it give it to he his executor and assign and therefore come with that clause  all which I give to the say earl his executor and assign together modern with  my plate and jewel and all the rest of my estate real and personal under a One  cum with chattel with the legal and proper word of limitation for chattel no  more than a chattel ought to pass by they but I answer let we first consider  how this clause residue of all his real and personal estate be to be apply  whether we shall take it in a accusative govern by the verb do or in the  ablative by the One cum and I think it a accusative and not a ablative and  that even in Latin it will be good grammar so in this manner in all respects  who do et law I c b One cum bud et argent et totum residuum status urinate  realis et personal and this be good sense and grammar and consistent with the  meaning and intent of the testator but suppose it be put in the ablative the  freehold in the rend will pass as if a man have a real and personal estate and  devise his personal estate One cum his real estate the one and the other pass  as full as if there be express word of devise or grant to both of they Stukley  v buller hob more d if a man make a feoff in fee of the manor of d One cum the  manor of S and make livery secundum form paper both shall pass though it be  under a One cum if a man be possess of a term for year of such a house and he  devise his term for year One cum his house call b which be fee they shall both  pass and there be no difference between where word be particular and where  they be general if the general word can be satisfy without pass the real  estate as here they can second whether in case a freehold in the rend do pass  it be of a estate in fee or for life and we all hold that a inheritance passes  to the earl of Bridgewater if a man be seize in fee and devise his estate the  inheritance shall pass without any other circumstance to manifest his intent  mere by devise his estate see roll Abr pl Mod and Cowper v Martin term Rep  Fletcher v Smiton term Rep a without this construction the word of the will  can stand for the word estate imply a feesimple for that be the general estate  that every man be suppose to be seize of   light b estate come from to stand  because it be fix and permanent and import the most absolute property that a  man can have it be true a estate for life be a estate but it be with a  addition and estate in a deed must be intend of a absolute feesimple therefore  in a will c most certain in grant it will not pass a fee because the law  appoint that let the intent of the party be ever so full express and manifest  in grant without the word heir a fee shall not pass Litt tenor sect c if a  feoff be make to I S to have to he in feesimple which word can have no other  sense than to pass a inheritance yet a estate only for life shall pass Com dig  estate a d and yet feesimple in plead be that which describe the inheritance  as seisitus in of his ut de fee Litt tenor sect e but in a will it be not so  the reason be because a will for land be a new conveyance create by the  statute of Henry c whereby a man be enable to devise all his socage land at  his will and pleasure now when a man manifest show his intent that the devisee  shall have the inheritance or a modern great estate than for life the statute  that empower he to devise his estate at his pleasure shall make his  disposition good without tie he up to the form of commonlaw and this be  agreeable to the commonlaw in case where estate be devisable by custom for  there express word of limitation be not necessary for a devise of such land to  a man et blood his pass a estate tail see roll Abr pl f in the next place  there be word of relation it be not only the estate but my estate the duke of  Bolton be seize in fee of these rend and he devise his estate that be be give  that estate that be his and that must be construe a fee modern er p for if a  man ask the question what the duke give the earl the answer be his estate if  it be ask what estate it will be answer fee now to construe this to be only  for life or in tail will direct contradict the testator word for then all  estate for life will not be the duke estate but a new and a less estate for it  be a estate in fee and you will have a estate for life pass which will be a  new estate and though there be no difference between devise his estate and  devise CC all his estate vet the word all make the devise much more  comprehensive and if he give all the residue he must give a feesimple for a  estate for life be not all for every estate in fee consist both of freehold  and inheritance and therefore if he do not give the fee he do not give all it  be object that the word estate be understand not of the interest which a man  have but of the thing itself if a man give by will all his estate in such a  house then the interest passes but if he devise all his estate without  ascertain in what the thing and not the interest shall pass but I do not think  so for the word estate do in truth comprehend the thing and the interest for  it be impossible that one shall have the original interest in a thing and not  have the thing itself and still the word in its proper sense import the  interest suppose I covenant with John style to convey he all the covenantors  estate in Middlesex and the covenantor make he a charter by word of grant of  totum slat c will any man think the covenant satisfy No sure for that oblige  he to convey a feesimple therefore if he will perform his covenant he must go  in his grant beyond the word of the covenant we know in plead that the word  estate import a fee as in a formedon if the tenant plead that John style be  feoff with warranty pron  interrog  position the tenant have that shall be  understand of a fee but for another reason this must be a fee and here I will  quit the word estate and suppose the devise to be of his feefarm rend and so I  hold a feesimple will pass as this devise be for this reason for the earl be  enjoin to make provision for his young child out of the estate devise to he  suppose a man seize of the manor of dale devise it without any limitation to  make provision for I S in such manner as he shall think convenient and declare  that he leaves it entire to he sure a very good fee will modern pass for in  all case where land be devise to a particular purpose and the death of the  devisee may prevent that purpose there the devisee will have a fee and that be  collier case   a and if here the duke bad appoint a certain sum to be pay it  have be within the express word of collier case but though that be not do yet  here be a trust repose in he and how can he discharge that trust if he have  only a estate for life a devise to a man to dispose at will and pleasure be a  fee latch see also Com dig chancery W b and this be to dispose as he please a  devise be make of land to his wife to dispose thereof upon herself and her  child and it be hold that she bad a fee subject to a particular trust for the  childrenMoor pl see also Com dig chancery W Com dig devise n c three we will  consider this clause as qualify by the word not otherwise dispose of that be  take it for grant that a fee passes by the word the residue of all my estate  real and personal how will it be if the word not otherwise dispose of be add  it have be insist on that these rend be otherwise dispose of by the will for  the duke devise that his executor if occasion shall be shall sell any part or  all of they for payment of his debt and legacy so this be say to be  disposition enough to make they out of the general clause of the will but sure  if this authority give to the executor be not a disposition then the rend be  not exempt out of the word of the general clause and it be plain that give a  executor power to sell be no disposition for the executor in this case take no  estate but have only a authority which when execute and the executor in  pursuance thereof have make a sale of the rend then and not before be they  dispose of and except out of the general clause of the will but if the  executor do not sell or if there be no occasion for they to sell in which case  they can sell then there be no disposition one seize of diverse message in  several parish devise some of they in fee and some for life and then devise  all his message not before dispose of modern er p and it be hold vent a that  the reversion of the house devise for life will pass indeed the executor in  case of deficiency be enable to dispose of these rend but if they do not or if  there be no occasion they be not dispose of and therefore give to the earl a  seize of the manor of dale and other land devise part of they for six year and  then devise the rest and it be heldAllen b that by the word rest the reversion  of the part devise for year pass if a man seize in fee of several land and  tenement in dale devise all his land to b and his heir but if my personal  estate be not sufficient to pay my debt then I intend that blackacre shall not  pass if the personal estate be sufficient it shall pass it be plain the  executor have not power to sell they but upon a condition precedent that be in  case his debt and legacy can not be pay within six month after his death and  pray how come the now duke of Bolton to claim they if they be dispose of by  the will if they be dispose of be can have no claim if not they be devise to  the earl but who shall have they during the six month modern until it be know  whether they shall be dispose of or not sure the earl shall for until then  they be not dispose of and where in another clause of the will the duke take  notice that he have not dispose of these rend by these word notwithstanding  that I have not devise they by this my last will I answer that it be plain  from what have be say that by the general word they be dispose of but then  what can be the meaning of these word it must be notwithstanding that they be  not particular devise to that purpose or otherwise than general and it be no  new matter to reject lose word out of a will rather than the intent of the  testator shall be frustrate hob so these word may be reject here but some will  say sure it be not the intent of the duke to devise these rend to the earl  since he take notice that he have contract for the sale of they and the devise  to the earl can not have prevent the contract take effect I answer it be plain  notwithstanding the sale or contract that be do devise they for if the debt  and legacy be not pay within six month be devise his executor to sell they and  ill case he with who the contract be make do not perform then he devise to the  earl and if the rend have be sell accord to the contract it have be no  prejudice or diminution of the earl legacy for the surplusage after debt and  legacy pay will come to he as residuary legatee fourthly consider the last  clause of the will whereby he order these rend in case of deficiency c to be  sob and the remainder thereof after the debt and legacy pay to go to the earl  I say consider this clause with other scatter clause in the will the rend  thereby will pass some doubt have be make whether the word remainder of my  rend be sufficient to pass these rend first because a remainder be a residue  of something so that if there be nothing sell nothing can be a residue or a  remainder this depend upon the construction of the word remainder whether  there be a necessity to sell to make a remainder but I do not think the word  remainder here be to be take for a remnant of a totum when part be extract  from it for if the rend be not sell then they remain unsold and the word  remainder shall be understand for the rend remain unsold this word remainder  make some dispute which last for above all age it be a great question whether  there can be a remainder of a thing create de novoPlowd a for there can be a  remainder of a thing that never have be before since a more reasonable  construction have be make if a man by deed grant a rend to a and the heir of  his body remainder to b and his heir this be a good remainder side see also  Mod Mod dyer Peer wms and   light a note a note b modern the devise be here of  the feefarm rend to make thereout such annual payment as the devisee please if  it be a sum in gross it will be a fee accord to collier case c and spicers  case   see also more palmer and the case of spicer v spicer cro James c if  only a estate for life bad come to the earl the security of payment of the  annuity must be diminish and call it be intend but that the duke intend the  security shall continue as long as the annuity be modern er p to be pay which  can not be if the earl have only a estate for life for suppose they to who the  annuity be Payable shall outlive the earl et per totan curian the plaintiff  have judgement as to the operation of the word estate see Cheshire v painter  Peer wms Barry v Edgeworth Peer wms tanner v wise Peer wms S c case t t  Goodwin v Goodwin vezey Frogmartin v wright will Mance v tall ambler hogan v  Jackson Cowp right v Sidebotham dougl holdfast v Martin term Rep Fletcher v  Smiton term Rep do v chapman h Bl Rep palmer v Richard term Rep do v Woodhouse  term Rep Andrew v Southouse term Rep a