case NEWCOMAN against bethlehem hospital Michaelmas heir male take by purchase  though he be not heir general from the manifest intention see a full note of  the judgement in this case in the appendix to the present edition lib Reg b  foe nom newcomen v mayor and commonalty of London guardian of bethlehem  hospital hill ms vol Cox ms r Lord Hardwicke c sir Edward Barkham have no  issue by will of that January devise his estate to trustee to be sell for  payment of debt and legacy and after payment thereof direct the residue of his  land and hereditament to be settle upon and convey to his cousin Robert  Barkham and the heir male of his body and for want of such heir male then to  the heir male of the body of sir Robert Barkham his greatgrandfather and for  want of such heir male then to the testator own right heir he give pound to  his sister the plaintiff the be heiress at law to the testator and have  intermarry with Mr Newcoman man l r to be put out at interest for her life she  to receive the interest and after her death to her child and dispose of the  residue of his personal estate ambler this come before the court on a bill of  review bring by plaintiff to reverse a decree of Lord Cowper pronounce on that  February by which a account be direct to be take of the real and personal  estate and also of the debt of the testator and the estate be to be sell for  satisfaction of the debt and as to the question to who the residue ought to be  convey it be order a conveyance shall be make to Edward Barkham and the heir  male of his great grandfather remainder to testator right heir the decree be  carry into execution and a conveyance make accord to he and he soon after  suffer a recovery and then devise to bethlehem hospital till the year  plaintiff be a feme covert and in she bring her bill and insist on a point of  law that the conveyance ought not to have be make to Edward Barkham as heir  male of the body of the great grandfather of testator but to herself as heir  at law of the testator and likewise heir general of old sir Robert Barkham to  this defendant demurrer but the pedigree of the family not be state I order  the demurrer to be overrule that the whole may come on before the court as  full as at the time of make the decree by Lord Cowper the question be exact  the same as on the demurrer only with this new fact add of the pedigree of the  family which be thus sir Robert Barkham the testator great grandfather be the  common ancestor and have two son sir Edward and Robert sir Edward the old  leave one son sir Robert and he leave two son sir Edward the testator and  Robert and two daughter mary the plaintiff and Hester testator Robert and  Hester be all dead without issue so that plaintiff be only survive heir at law  to testator and likewise to the great grandfather ambler er p ambler Robert  the young son of the great grandfather leave three son videlicet Robert the  old who die without issue Edward second son who have the conveyance under the  decree and Michael three son who die leave issue Edward since dead without  issue here have be twenty year acquiescence under the decree of Lord Cowper  and many case have be determine on the authority of that decree and though it  be say to be no bar to plaintiff she be under coverture yet it can be suppose  but that her husband be equal concern to support her interest as his own the  general point be whether Edward Barkham be entitle to take the residue under  this will of sir Edward by the description of the heir male of old sir Robert  the rule of law be that whoever claim as heir male of the body to take by  purchase must be right heir as well as near heir male descendant of the body  of that person I shall in the second place consider whether there may not be a  exception to this rule occasion by the intention of the testator appear  manifest in the will to stThere be a distinction between take by descent and  by purchase in case of the former it be sufficient to be near in descent claim  all along through male notwithstanding a heir female be heir general and this  by the stat de gift but to take by purchase he must be heir general as well as  heir male agreeable to this be   light b which be transcribe from his own  argument in shelly case die to overthrow this general rule two thing have be  advance saint that the original authority have not be right understand or  expound dly that such a rule be contrary to natural reason and in that the  counsel have follow Lord Cowper if this matter have be res integran and to be  consider as at the time of make he decree I shall have be so convince by the  argument and distinction ambler of Lord Cowper as to have be of the same  opinion but when rule be lie down in book though they may not have much reason  in they yet it be sufficient they be know and I shall be very tender in set up  my opinion in contradiction to they therefore will find myself on d question  and leave the first till it shall come for judgement by itself Meredith v  Jenkins that Dec in Chan I be of opinion there may be a exception to the rule  before lie down appear clear by the intention of the testator Lord Hobart say  judge ought to be clever to find out reasonable distinction to unreasonable  rule and therefore Lord hale in pibus v Mitford express himself not well  satisfy with this rule and make a second point to distinguish the pen of that  case out of it the intention of the testator be to be consider as now grow  into a rule but it be certain in case it be contradictory to the law the  latter will overthrow it on this ground of the intention several case have be  adjudge as exception to this rule the case incorrect cite by Lord hale in  pibus v Mitford Ventr be one of the first that come under consideration the  next case be James v Richardson Polixf which afterward come in judgement by  the name of Burchett v Durdant Ventr so Beaumont v long in dom proc that may  baker v wall Trin W in c b I will now mention two case determine subsequent to  the decree of Lord Cowper videlicet Papillon v voice Eq Cas Abr decree at the  roll and afterward reheard by Lord king d wms and affirm as far as relate to  the present question in which case Lord king say the case of Lisle v grey be  very strong where it be hold that the second three or four son be capable of  take by the description of heir male of the body notwithstanding there be a  daughter who be heir general live at the same time law v Davis Fitzherbert  devise to b and the heir male of his body videlicet to the first son and the  heir male of his body so to second and other son this be construe a estate for  life only in b and it be observable that the word for life be not in the  devise these be case of will but there be case on deed where this rule have be  break into Inst b John de Mandeville by his wife Roberge have ambler issue c c  pibus v Mitford Ventr Lisle v grey lev sir Thomas Jones Polixf by which it  appear that second three or four son may take notwithstanding a daughter by  the first son be live Polixf mention this rule as a insuperable difficulty and  rely much upon it yet the court do determine that a young son may takeby  purchase though there be a daughter live by the elder son now I come to the  latter part of my question whether such a intention do not appear in the  present case I think it do and shall proceed to the word of the will and the  pedigree of the family testator primary intent be to preserve ambler er p so  much of the estate as shall not be exhaust in payment of debt in the male line  of his family consider what appear in the will to hue the testator intent that  the heir male shall take as purchaser though he be not heir general testator  be great grandson and heir general to sir Robert and by order of descent  nobody can be heir general of the great grandfather without be also heir  general of the testator and yet he limit it to the heir male of the great  grandfather before his own right heir by which he plain intend that the heir  male of the great grandfather shall take in opposition to the heir general of  the great grandfather which amount to the same thing as if the testator have  say the heir male of the great grandfather shall take though he be not heir  general and it be like the know case in Henry m several case be cite for  plaintiff in support of the rule which be subsequent to shelly case videlicet  ford v Ossleton mich Ann report in salk which by the buy be a book of no  authority though the two first volume be the word heir male in a will be  always construe heir male of the body and that case be not within the reason  of the present because the lessor of plaintiff be not heir male of the body  sterling v Etterridge Prec in Ch fall within the same reason so daw v Ferrars  Prec in Ch another point make by the counsel be that equity will take place  and that this be the case of a executory trust and not a legal devise this  court be to make a conveyance accord to the intent of the testator I be  unwilling ambler to give rise to a argument to set up a rule of property in  this court different from that at law but if the case have want it there be  authority in law v Davis it be allow and Lord king in Papillon v voice find  his judgement upon it for the land to be purchase be direct to be settle one  way and the other land another way but I will not settle my judgement only on  the distinction between a executory trust and a general devise especial as  there be no occasion for it in the present case the last point insist on be  that Edward in case he take by this devise take only a estate for life and not  in tail and if so that be sufficient to maintain plaintiff title but there be  no weight in that for if land be limit to the heir male in the plural number  that not only describe the person but the estate also and therefore the  conveyance be proper direct to Edward Barkham who be heir male in be then and  of the body of the greatgrandfather which word limit a good estate tail in he  and this be agreeable to the case in saint Inst b decree affirm l r as to the  deposit as this be the case of a disinherit heir Lord chancellor say it shall  not go to the defendant but to the heir but as there be executor who be bring  before the court against their inclination and can not possible receive any  advantage by the decree half of it be order to be pay to they l r