case ralph TEATT plaintiff james strong defendant in error that may that may a  be seize of the reversion in fee of a settle estate and of other estate in  feesimple in possession make his will and thereby devise several describe  estate to his wife and her heir and add all other my land tenement and  hereditament these word however forcible ex way termini to carry the reversion  of the settle estate will not so operate where a contrary intent appear clear  upon the face of the will burr see roe v read t r in re flower trust Ch d in  Michaelmas term a ejectment be bring in the court of king bench in Ireland in  the name of the plaintiff against the defendant for diverse tenement and  hereditament in the town and land of Coolnegard Sydonan Railagh otherwise  Reylands Culbuck Tarlum and Agheleage in the county of Tyrone upon separate  demise several make by the lessors of the plaintiff on the that of June for  the term of year from thenceforth the defendant plead not guilty upon which  issue be join and on the saint of November the cause be try at bar by a  special jury of the county of Tyrone who find a special verdict to the effect  follow videlicet that sir Audley Mervyn Knt be among other manor and land in  the say county of Tyrone seize in fee of the manor and lordship of arlestown  whereof the land in the declaration be part and have issue three son Henry  Hugh and George duly make and execute certain indenture of lease and release  date the d and d of August whereby sir Audley in consideration of a marriage  before have between he and dame Martha his wife and of the portion receive  with her and for make a jointure for her and for the better vest and settle  the premise in his brown er p family name and blood and for other  consideration do grant and convey the say manor and lordship of arlestown to  trustee and their heir to the use of himself for life without impeachment of  waste and after his death subject to certain provision thereby make for dame  Martha his wife and his young child to the use of Henry Mervyn his old son and  the heir male of his body remainder to the use of Hugh Mervyn his second son  and the heir male of his body remainder to the use of George Mervyn his three  son and the heir male of his body remainder to the right heir of sir Audley  Mervyn and thereby covenant to levy a fine and suffer a common recovery of the  premise which it be declare shall enure to the same use but it be not find  that any fine be levy or recovery suffer pursuant to such covenant brown that  sir Audley Mervyn die in and upon his death the say Henry Mervyn by virtue of  the say deed enter into the say manor of arlestown and be seize of such estate  therein as be limit to he by the say deed and be so seize and have issue one  son name Audley duly execute indenture of lease and release date the that and  that of December whereby in consideration of a marriage then late have between  the say Audley Mervyn and Olivia the sister of Lord Calloony and in pursuance  of agreement make upon the say marriage and in consideration of a marriage  portion of pound sterling pay or secure by Lord Calloony with his say sister  to the say Audley and Henry Mervyn or one of they and for make provision for  payment of Henry Mervins debt and settle the premise in his name blood and  family and for settle a competent jointure on the say Olivia and make  provision for the young son and daughter of the say Audley Mervyn Henry and  Audley Mervyn grant and convey the say manor of arlestown of which the premise  in question be parcel to trustee and their heir to the intent and purpose that  a rentcharge of pound a year shall be issue out of the same premise to the use  of the say Olivia during her life and after her decease to the use of the say  Audley Mervyn during the joint life of the say Henry and Audley and the  survivor of they and subject thereto to the use of the say Henry Mervyn for  life without impeachment of waste remainder to the say Audley Mervyn for his  life without impeachment of waste remainder to trustee for year from audley  death upon trust in case of failure of issue male of Audley Mervyn to raise  portion and maintenance for his daughter remainder to the use of Henry Mervyn  the first son of the body of the say Audley by the say Olivia and the heir  male of the body of the say Henry lawful issue remainder to the use of the  second three four and every other son of the body of the say Audley by the say  Olivia successive in tail male remainder to the use of the heir male of the  body of the say Audley Mervyn remainder to the use of the heir male of the  body of the say Henry Mervyn the elder remainder to the use of the heir male  of the body of the say Hugh Mervyn second son of sir Audley Mervyn decease  remainder to George Mervyn brother of the say Hugh Mervyn in tail male  remainder to the use of the right heir of the say sir Audley Mervyn Audley  Mervyn do not execute this last settlement that Henry Mervyn the father die in  and upon his death Audley enter into the say manor of arlestown under the  limitation to he thereof make by the say last mention settlement and become  seize as the law require and have issue Henry his old son the say Audley  Mervyn and Henry his old son afterward execute indenture of lease and release  date the saint and d of December and thereby in consideration of a intend  marriage between the say Henry and mary Titchbourne and of brown pound  sterling pay or secure to the say Audley Mervyn be the say mary portion and  for provide a jointure for her in satisfaction of dower the say Audley and  Henry Mervyn convey to trustee and their heir the say manor and land of  arlestown and diverse other land and premise in the county of Tyrone and meath  save and except certain town and land therein particular mention among which  be the land of Gortmore in the barony of onagh and Strahane in the say county  of Tyrone which be declare to be reserve to the say Audley Mervyn and his heir  out of this conveyance to the follow use videlicet as to all the premise in  the county of Tyrone to the intent and purpose that Olivia wife of the say  Audley Mervyn shall after his death receive a rentcharge of pound a year as  the same be brown er p limit to her out of all the say premise in the county  of Tyrone and subject thereto as to the say manor and land of arlestown  touchett and stoy together with diverse other land and premise in the say  county of Tyrone to the use of Audley Mervyn and his assign during his life  without impeachment of waste remainder to trustee to preserve contingent  remainder and subject to a rentcharge of pound a year therein limit to the say  mary Titchbourne for her jointure and from and after the death of the say  Audley Mervyn subject to the say rentcharge of pound a year to the say Olivia  to the use of the say Henry Mervyn and his assign during his life without  impeachment of waste remainder to trustee to preserve contingent remainder  remainder to other trustee for year without impeachment of waste in trust to  raise portion and maintenance for the daughter and young son of the say Henry  by the say mary remainder to the use of the first and other son of the say  Henry Mervyn by the say mary Titchbourne successive in tail male remainder to  the use of the say Audley Mervyn his heir and assign for ever in this deed be  contain power enable the say Audley Mervyn by deed or will to charge the say  manor of arlestown touchett and stoy among other with pound and enable Audley  and Henry Mervyn during their life and the person in remainder when in  possession to make lease for three life or year and enable Henry to make a  jointure on any future wife not exceed pound a year and the say Audley and  Henry Mervyn covenant with the trustee by a fine and recovery to be levy and  suffer before the end of Hilary term then next to secure and convey to they  and their heir all the say manor land and premise in the county of Tyrone  which fine and recovery be thereby declare to be to the use before thereof  limit and it be declare that all intails and remainder be thereby agree and  intend to be bar and extinguish that the say last mention deed of lease and  release be not register pursuant to the register act which pass in Ireland in  that the say Audley and Henry Mervyn in Hilary term that Ann levy a fine with  proclamation to Blainey Townley brown Hamilton Townley Chidley coote and  George gore and their heir among other of the land and premise in question  that in Trinity term that Ann a common recovery be suffer of the same premise  in which the say Blainey Townley and Hamilton Townley Chidley coote and George  gore be tenant and the say Audley Mervyn and Henry Mervyn voucher that Audley  Mervyn beside the say Henry his old son have issue Audley his second James his  three and Theophilus his four son and four daughter videlicet Lucy his old who  in her father lifetime marry Wentworth Harman Elinor his second one of the  lessors of the plaintiff who afterward marry Christopher Irwine Ann his three  another of the lessors who marry James Mervyn otherwise Richardson and jane  his four daughter that the say Audley Mervyn the elder be seize as the law  require of the say land and tenement mention in the say indenture of the d of  December on the that of June duly make and publish his last will and testament  in write a memorial whereof be register on the that of January and not before  and which will be set forth at length in the verdict in the word follow  videlicet in the name of God amen I Audley Mervyn of the naule in the county  of meath Esq be at this time sick and weak in body but of sound and dispose  memory and not know how soon it may please God to take I out of this world and  desirous to make the best provision in my power for the support of my child  and the peace and settlement of my family do make this my last will and  testament hereby revoke and declare absolute void all former and other will by  I at any time heretofore make imprimis I give my soul to God who give it and  appoint my body to be bury as my executrix shall think fit and as to the  worldly estate wherewith it have please God to bless I I give and bequeathe  the same in manner follow I give and bequeathe to my dear belove wife Olivia  to her proper use and benefit all my plate and household good and furniture of  what kind soever as also my coach six coach horse and their harness and three  saddle horse I also constitute and appoint my say dear wife sole executrix of  this my last will and testament and do give and bequeathe unto her all the  rest and residue of my personal estate of what kind soever and I do hereby  will and require my say executrix as soon as she convenient can after my death  to sell all the rest of my brown er p horse and all my stock of cattle and to  apply the money arise by such sale and all such debt as be or shall at the  time of my death be due to I particular the sum of pound due to I by judgement  affect the estate of Richard late earl of Bellamont the sum of pound or pound  brown due to I by Hugh Mervyn and also all arrear of rend which be or shall  become due unto I to the payment and discharge of such sum of money as shall  be due by I to any person or person at the time of my death and to the intent  that all my debt may be honest and true pay and discharge I do hereby give and  devise to my say dear wife Olivia and her heir all that and those the town  land and tenement of Baranagh Attahmore Mulliviny Donemeny cavan Camderry  Straduffe Golan Cavanaca Kilmenan Fallaheren Adenafogree Tatemony cranny  Drumglane Lissglanan screen Munalboy Woughterard Mulliagh Mullaghbane  Cloonmullin Curnemuckelan Lissneden Tulticlinagh Rarreinbegg Edenderry Garwaby  Upper Aghagallan low Ahagallan call Galwelly Arvaley Tatakeil Cravanah Campson  Lissnamallaho Lissnally Shergroome Killmore barley park the park and tenement  now in the possession of Mr Maxwell the park now in the possession of widow  Machan the tenement and park now in the possession of John hill hiland hill  Gretrash the warren park now in the possession of William Wilson all which say  land and tenement be situate lie and be in the county of Tyrone as also the  town and land of naule Burringtown Flemingtown Mooresides Kendestrown  Dardestown Cloghan and Clogherstown all which last mention land be situate lie  and be in the barony of Duleeck and county of meath and also all other the  land tenement and hereditament in the say county of Tyrone and meath or either  of they whereof I be seize in feesimple or of which any other person be seize  in trust for I together with their and every of their appurtenance to the use  intent and purpose that my say dear wife shall take and receive out of the say  land as a addition to her jointure one annuity or yearly rentcharge of pound  per and during her natural life to her proper use and benefit and to this  further use and purpose that my say wife may by sale of such of the say land  hereby to her devise raise so much money as may be sufficient to pay off and  discharge such of the say debt as shall not be pay off and discharge out of my  personal estate and as to such part of the say land and tenement as shall  remain unsold to the use follow subject nevertheless to the payment of the say  sum of pound per and to my say dear wife during her natural life videlicet to  the use of my son Audley for and during his natural life and from and after  his death to the use of his first and every other son and son several and  successive and to the heir male of their several and respective body and for  want of such issue to the use of my son James for and during his natural life  and from and after his death to the use of his first and every other son and  son several and successive and to the heir male of their several and  respective body and for want of such issue to the use of my son Theophilus for  and during his natural life and from and brown after his death to the use of  his first and every other son and son several and successive and the heir male  of their several and respective body and for want of such issue to the use of  my son Henry during his natural life and from and after his death to the use  of his first and every other son and son several and successive and the heir  male of their several and respective body and for want of such issue to the  use of each and every of my daughter and the heir of their several body as  tenant in common and not as joint tenant and for want of such issue to Mervyn  Archdall and Henry Carey my nephew and their heir and it be my further will  and intention and I do hereby devise that if it shall so happen that my son  Henry and Audley shall both of they die without issue male in the lifetime of  my son James whereby the estate settle upon my son Henry upon his marriage  shall descend come or remain unto my say son James that then and in such case  my say son James shall not take any interest or estate in the land and  tenement herein before devise unto he but that the same shall remain and go  over to my son Theophilus accord to such interest and estate as be herein  before to he devise for want of issue male of my say son James and I will and  devise that my executrix shall have full power and authority by her last will  and testament in write to charge or encumber all or any of my land and  tenement herein mention with such portion and provision for all or any of my  daughter as she shall think reasonable and it be my further brown er p will  and intention that whoever of my son shall be seize of a estate or use for  life in the say land shall have power to commit waste as also to settle a  jointure on any woman he shall marry in proportion to her fortune and likewise  to make lease for one two or three life or year at the high rend that can he  have from a solvent tenant and whereas by the settlement make upon the  marriage of my son Henry I have power to charge the estate settle upon my say  son with the sum of pound for the portion of my young child I do hereby will  and direct my executrix immediate after my death to receive the say sum of  pound for the use of my young child and to apply the interest thereof to their  education and maintenance in such manner as she shall think fit and to dispose  of the principal thereof in manner follow that be to say to my son James and  Theophilus and my daughter Elinor Ann and jane the sum of pound each at such  time as he or she shall marry or attain the age of year which shall first  happen and in case any of my say son or daughter shall die unmarried and  before the age of year I will that my say executrix shall divide among the  survivor of my say son James and Theophilus and my say daughter Elinor Ann and  jane the sum of pound design for he or her so die in such manner as she shall  think brown fit and I also will and devise that in case my several land herein  mention or any of they shall by virtue of this my will remain and come to my  son Henry that my say executrix shall have power and authority to charge and  encumber the same with any sum not exceed the sum of pound sterling for the  use and advantage of such of my daughter as shall be then alive and unmarried  as a addition to their portion that the say Audley the elder be at the time of  make the say will and at his death seize in fee in possession of the land  devise by express denomination in his will and likewise seize in fee in  possession at the same time of the land of Gortmore in the county of Tyrone  contain acre that the land in the say county of Tyrone express devise by the  say will include the say land of Gortmore be of the yearly value of pound and  that the estate settle by the say indenture of the d of December be in the  year or of the yearly value of pound that the say Audley Mervyn the elder die  on the that of June seize as the law require of the land and premise comprise  in the say settlement of the d of December of which the premise in question be  part that on the death of the say Audley Mervyn the elder the say Henry Mervyn  his old son and heir become seize of the land and premise in question as the  law require and be so seize he duly execute certain indenture of lease and  release date the that and that of September whereby in consideration of pound  he grant and convey the premise in question to and to the use of John strong  his heir and assign for ever under the yearly feefarm rend of pound that the  say John strong immediate after the execution of the say deed enter into the  say premise and become seize thereof as the law require and continue in the  actual quiet and peaceable possession thereof during his life and in he die so  seize leave the defendant his old son and heir who immediate after his father  death enter into the say land and premise in question and become seize thereof  as the law require and continue in the actual quiet and peaceable possession  thereof till the that of June that a memorial of the say last mention deed of  lease and release be duly register on the that of November pursuant to the  statute that the say Olivia Mervyn die in the year the say James Mervyn son of  the say Audley Mervyn the elder die in the year unmarried and without issue  the say jane Mervyn die in the year unmarried and without issue the say  Theophilus Mervyn die in the year unmarried and without issue the say Lucy  Harman die in the year leave Wesley Harman one of the lessors of the plaintiff  her old son and heir at law that the say mary the wife of the brown say Henry  Mervyn the young die in the year have never have any issue by the say Henry  that the say Audley Mervyn the young die in the year unmarried and without  issue that the say Henry Mervyn the old son of the say Audley Mervyn die saint  February have never have any issue that the say Mervyn Archdall in the say  will mention die in the year and the brown er p say Henry Carey survive he and  die in September and that the say Hugh Mervyn second son of the say sir Audley  Mervyn die in the year leave Arthur Mervyn one of the lessors of the plaintiff  his old son and heir at law in easter term the court of king bench in Ireland  which at that time consist of two judge only give judgement upon this special  verdict for the plaintiff as lessee of Henry Carey Wesley Harman Elinor Irwine  and Ann Mervyn be of opinion that the reversion in fee limit to Audley Mervyn  the elder by the settlement of d December pass by his will to Olivia Mervyn  his wife but the defendant Mr strong have bring a writ of error into the king  bench in England and assign the general error the special verdict be twice  argue and in Hilary term the judgement of the king bench in Ireland be reverse  the court be clear of opinion that the reversion in fee do not pass by the  will of Audley Mervyn to the say Olivia and her heir the lessors of the  plaintiff therefore bring a writ of error in parliament to reverse this latter  judgement and on their behalf it be say c Pratt c York that two question have  arise in this case saint whether the reversion in fee limit to Audley Mervyn  the father by the settlement of pass by his will and suppose it do then dly  whether the lessors of the plaintiff at the time of bring the ejectment have a  legal estate in the premise in question or whether upon the death of Olivia  the same descend to Henry Mervyn her old son and heir as to the first question  the testator Audley Mervyn in the preamble of his will declare himself  desirous of make the best provision in his power for the support of his child  and the peace and settlement of his family and to dispose of all his worldly  estate and he thereby devise the same which be a word of reference must  include not only all his personal but also all his real estate and have the  like effect as a express devise of all his worldly estate which will  indisputable have comprise both and upon all the argument in the court below  it be agree by the counsel for the defendant strong that the word and also all  other the land tenement and hereditament in the say county of Tyrone and meath  or either of they etcetera will be sufficient to pass the reversion but it be  insist on behalf of Mr strong that though the testator have power to dispose  of the reversion in fee of the settle estate and use word in the will  sufficient to carry the same yet there be subsequent part of the will which  show that brown he intend to devise only the estate of which he be seize in  feesimple possession videlicet the clause whereby the testator declare that if  it shall happen that his son Henry and Audley shall die without issue male in  the lifetime of his son James whereby the estate settle upon his son Henry on  his marriage shall descend come or remain to the say son James that then and  in such case his son James shall not take any interest or estate in the land  and tenement therein before devise to he but that the same shall remain and go  over to his son Theophilus accord to such interest and estate as be therein  before to he devise for want of issue male of his say son James also the power  of lease contain in the will the limitation to Henry for his life with  remainder to his first and other son in tail male and the clause empower  Olivia to charge the estate of which the testator be seize in feesimple in  possession with pound upon the event therein mention and with regard to the  transpose clause it be insist that it will be whole inconsistent with the  testator intention to consider the reversion as pass by the will for in that  case if Henry and Audley die leave issue male in the lifetime of James he will  take nothing as both estate upon that event be suppose to be devise over to  Theophilus to this objection it be answer that the testator recite in this  clause the contingency of the settle estate go to James on the death of Henry  and Audley without issue male can not be account for without comprise the  reversion in the will which may be make consistent by restrain the latter part  of the clause concern James to the land particular name and it be obvious that  the testator think his settle estate must of course by his will have come to  James upon the death of Henry and Audley without issue male which can not be  so if the reversion be not comprise in the antecedent part of the will as  there be no limitation of the settle estate to Audley or James by the  settlement hence this clause be a argument for the plaintiff and may be  consider thus if Henry and brown er p Audley shall both die without issue male  in the lifetime of James whereby the settle estate will by virtue of the will  come to James in such case James shall not take any estate in the other land  and tenement which the testator have devise to he but the same shall go over  to Theophilus that there be many case where one word of a different sense have  be read for another to give a will the proper operation and make it consistent  as and for or and so word have be supply to make the sense complete as well in  deed as will and here the addition of the word other make the whole consistent  but if this clause shall be take in the sense contend for by the defendant  there be a plain mistake in it in the addition of the word male after issue  for the reversion if not comprise in the will can not descend to James by the  death of Henry and Audley without issue male but by their death without issue  general brown that the objection arise from the transpose clause can not have  affect Audley the son who it be apprehend must have have both estate under the  will and therefore a different construction ought not to be put upon it on  account of the declaration in regard to James that he shall not enjoy both  estate as to the power of lease and make a jointure by the settlement of Henry  only be empower to make lease and the power of settle a jointure give to he by  that settlement be to enable he after the decease of mary Titchburne to assign  a jointure for any woman he may marry whereas the power contain in the will be  for any of the son when seize to settle a jointure on any woman they shall  marry in proportion to her fortune and to make lease so that the power contain  in the will be different from those give by the settlement and as to the  objection that the settle estate be limit to Henry for his life with remainder  to his first and other son by mary Titchburne in tail male special the same  can not prevail for they may take the reversion and service by the will and  the devise contain in the will be to he for life with remainder to his first  and other son in tail general which will take in his son by any other wife and  consequent he take a different and more enlarge estate under the will but it  be say that the land of Gortmore which be not mention in the will answer the  intent of use the general word but Gortmore in the Irish language mean a great  or large field and be in fact a part of the land call hiland hill beside as it  be situate in the county of Tyrone there will have be no occasion to mention  both county if the intention have be only to take in that description it be  also object that if mary Titchburne have die and Henry have marry another wife  and have issue male by her yet that such issue will have no part of the family  estate if the reversion in fee pass by the will this indeed may show that the  testator intend to prefer his second three and four son and their issue male  to Henry and his issue male by any other wife but it be apprehend that no  argument can be draw from thence to prove that be do not intend to devise the  reversion in fee of the settle estate by his will for it be very evident that  the testator have in the beginning and in the material part of his will make  use of legal and proper word sufficient to take in the reversion in fee of the  settle estate and which it be admit he have power to dispose of by his will  why may it not be reasonable presume that he intend to devise the same and the  more so as the estate be subject to a additional jointure of pound a year for  Olivia and to debt and portion for his young child and to the several debt and  encumbrance mention in the settlement of amount in the whole to pound and  likewise to the testator other brown debt beside the contingency of its be  make liable to the further sum of pound for young child and as to the second  question it be apprehend that the several remainder limit by the will be  execute by virtue of the statute of use and the power of sell be add immediate  after the clause give Olivia a additional jointure of pound a year whereas if  it have be insert after all the limitation there can not have be the least  doubt but that all the remainder will have be legal estate actual execute and  this case be different from devise to trustee and their heir to the use of  they and their heir or to trustee and their heir to the intent and purpose  that they shall sell in order to pay debt but if these remainder be not actual  execute by virtue of the statute of use they may still be good by way of  executory devise as they be to take place within the time allow of by law I e  after a life in be for the power of sell be personal in Olivia and can not  descend to her brown er p heir she alone be enable by the will to execute it  and there be good reason for limit the power in this manner for as S he be  executrix she know best how far the personal estate will extend towards  payment of the debt and how much of the real estate will be necessary to be  sell and it be not find by the special verdict that there be any debt unpay at  her death but it be insist that though the limitation to Audley Mervyn the son  be good by way of executory devise yet that the other remainder be void as be  on too remote a contingency if however the remainder to Audley Mervyn the son  be vest the other remainder must certain be good for if the will be consider  in the forgo light contend for by the plaintiff it will appear consistent and  no person can be injure by it by pass the reversion the testator have make the  best provision in his power for his family the general word be satisfy the son  be provide for agreeable to the testator intention the fund for the payment of  debt be increase and Henry power of settle a jointure upon a second wife and  make lease be enlarge but if a contrary construction shall prevail all this  will be frustrate beside it be extreme improbable that a man who be so careful  to perpetuate a small estate in the male line and so intent upon aggrandize  his issue male that he do not give any of his son the usual power of charge  portion for their daughter will leave his ancient and large family estate  unsettle it be therefore hope that the judgement of the court of king bench in  England will be reverse and the judgement of the court of king bench in  Ireland affirm on the part of the defendant in error it be contend g Perrot a  forester that the import of the general word all other the land tenement and  hereditament in the county of Tyrone and meath or either of they however  forcible ex way termini to carry the reversion of the settle brown estate can  no long be so when the testator intent appear to the contrary as it clear do  from every part of this will and when there be other land videlicet those of  Gortmore to satisfy they the settle estate be oppose to and distinguish from  the devise estate throughout the testator declare that if his son Henry and  Audley shall both die without issue male in the lifetime of his son James  whereby the estate settle upon Henry shall descend to James then James shall  not take any estate or interest in the land devise to he but they shall remain  and go over to his son Theophilus now if the reversion of the settle estate  pass by the will nothing can remain with James for the settle estate which be  intend to continue with he must as part of the devise land go over to  Theophilus the testator have declare that in the event abovementioned his son  James shall not take any estate or interest in the devise land beside the  reversion of the settle land can never come to James by virtue of the will  upon the death of Henry without issue male the devise to Henry come after that  to James and be not to take effect till after the death of James without issue  male but though there be no possibility of the settle estate come to James  upon the death of Henry without issue male by virtue of the will yet it may  have come and descend to he in some other way for upon the death of his  brother Henry and Audley without issue male it may have descend to he as heir  at law or have remain to he by a will or settlement of either of those brother  that it be evident from the power give in this will that the reversion be  never mean to pass by it the power to the testator wife of charge the devise  land with such portion for his daughter as she shall think reasonable be  confine to the land mention in his will and can therefore extend only to land  in possession none other be therein mention so the jointuring and lease power  refer only to the land specify and it be a very remote consideration that the  testator shall mean to extend they to the reversion when in their nature they  be applicable only to a possession and also when his son Henry upon who estate  that reversion be expectant have they already by the settlement and so they  can never take effect in he the power to the executrix of charge the land with  pound as additional portion for the daughter be restrict to those land which  shall come to Henry by virtue of the will but the settle land can never come  to he by virtue of the will because he already have they by the settlement and  this power be likewise restrain to the several land mention in the will which  the settle estate be not that the event upon which the devise land be to go  over to Theophilus videlicet the death of Henry and Audley in the lifetime of  James without issue male make it clear that the testator do not intend to  disinherit any of Henry issue brown er p male and yet if Henry have marry a  second wife and have issue a son by her the limitation in the settlement of be  only brown to the issue male of his then marriage that son accord to the  construction put upon this will by the court of king bench in Ireland will  have be deprive of the settle estate though there be not a tittle in the will  which favour so harsh a construction the first purpose for which the land  either particular name or comprise under the general word be give be for the  make a additional provision of pound per and for the testator wife which be  another clear proof of his have in view only the land in possession since the  reversion can yield no profit during the life of Henry and in case of his have  a son who shall attain be every moment liable to be bar by such son as tenant  in tail and so can never make part of a fund destine for the wife better  support admit however that the reversion in fee do pass by the will yet the  plaintiff lessors have no title to recover upon this verdict since for any  thing which appear to the contrary the land in question may already have be  sell for payment of the testator debt but if they have not be sell the lessors  title thereto must be by way of executory devise or by way of use for they can  not take by remainder the devise be to Olivia Mervyn in fee and a remainder  can be limit upon a fee now they can not take by executory devise it be after  payment of debt indefinite and therefore void as exceed the compass of time  allow by law for the vest of a executory devise but allow it to be good it be  only so as to Audley Mervyn the first devisee and void as to every person  after he for as to they it can only take place after a general failure of  issue which have be adjudge to be too remote a contingency for a executory  devise to take place upon and even admit the devise to the son and daughter of  Audley Mervyn the testator to be all good executory devise yet the lessors  have no title to recover in this action the jury not have find that the debt  be pay and that the land in question remain unsold after they be pay for no  estate vest before the debt be pay their payment be a condition precedent to  its vest neither can the lessors take by way of use for the use be execute in  Olivia the devisee in fee and a use can be limit upon a use but suppose the  use do not execute in Olivia yet it be void for uncertainty be limit of such  part of the land as shall remain unsold after payment of the debt and at the  testator death when the will take effect it be quite uncertain what land or  whether any will remain unsold after the debt be satisfy but if the use be not  void for uncertainty yet it be not execute for the verdict not find the debt  to be pay and that the land in question remain unsold after such payment the  use limit to the lessors of the plaintiff still continue future and contingent  and consequent be not in be and the use not be in be be not execute by the  statute Henry VIII but remain future and contingent at commonlaw so that in  whatever light the question be consider brown the lessors of the plaintiff  have no legal estate or title to recover in this ejectment and therefore it be  hope that the defendant will be permit to hold the premise purchase of Henry  Mervyn by his father for a full and valuable consideration after hear counsel  on this writ of error it be propose and agree that the follow question shall  be put to the judge videlicet whether accord to the true construction of the  will of Mr Audley Mervyn the father the reversion in fee of his settle estate  pass by the devise in his say will and the Lord chief baron of the court of  exchequer have deliver their unanimous opinion that the reversion in fee of  the say testator settle estate do not pass by the devise in his say will it be  order and adjudge that the judgement of the court of king bench in England  reverse the judgement of the court of king bench in Ireland shall be affirm  and that the record shall be remit to the end such proceed may he have  thereupon as if no such writ of error have be bring into the house and it be  further order that the plaintiff in error shall pay to the defendant in error  pound for his cost in the house jour vol p brown er p