brown versus Barkham Tuesday Nov I g in court vide post S c of devise in trust  sir Edward Barkham be seize in fee of the land in question by his will date  the that of Jan devise all his estate to sir Edward Massingberd and Dymark  Walpole and their heir in trust to sell the same or so much as will be  sufficient to pay his debt and legacy and after payment thereof direct the say  trustee to convey the residue of his estate to his cousin Robert Barkham and  the heir male of his body and for want of such heir male to the heir male of  the body of sir Robert Barkham his great grandfather and for want of such heir  male to his own right heir for ever and give to his sister mrs newcomen pound  to be put out at interest by his trustee during her life and after her death  to be Gilbert pay to her old son and if she have no son then pound to go to  her executor or administrator and the other pound to go to his say cousin  Robert Barkham or his heir male and after some legacy all the residue of his  personal estate to the say Robert Barkham and make he his sole executor but  that if it happen that the say Robert be not in England at the time of his  death then he make the same trustee his executor in trust for he till his  return but in case the say Robert Gilbert report er p die before he return  then he make his heir male his sole executor and give he all his personal  estate and soon after die without issue Robert Barkham the cousin die without  issue in Spain before the testator and now the question arise upon this will  whether Edward Barkham who be the heir male of the body of the great  grandfather or mrs newcomen who be sister and heir to sir Edward Barkham the  testator and likewise the heir general of the great grandfather have the  better Title it argue by sir Thomas powys for mrs newcomen that Edward be live  and no notice take of he it plain the testator never intend he shall ever have  it in the same manner with his brother Robert that the pound be only a  recompense for the present devise of the estatetail to Robert and not to be  carry as a recompense throughout the last remainder that that be only to go to  those who full come within that description that the word heir be either to  denote the person who be to take and then it be vice a means of knowing vide  post to Abr Eq c and then it be to express the quantity of the estate which be  to pass hob he that will take as heir male by purchase must be not only heir  but male too and say the print case of Counden and clerk and the case of  Ashenhurst cite at the end of that case be direct in point that without all  question it so in limitation by deed and have always be hold to be the same in  will that in coke c archer case it hold to be plain a contingent remainder to  the next heir male of Robert archer and not such a description of his person  as to vest in he present for then it can never have be destroy by the feoff of  the father and Leon Challonor and boyer come up direct to our case and show  that the same construction have prevail in a will as in a deed that in the  case of Burchett and Durdant vent post if it have not be for the word now live  it have be a plain contingent remainder and so the judge in that Cause agree  and cite the case of Goodwright and Cornish Mod to the same purpose and that  in the case of Beaumont and long the word beget be always hold equivalent to  the word now live and amount to a description of the person that there be a  wide difference between the word and for want of such issue and the word for  want of such heir male that in the first case the word issue be a explanation  and correction of the general import of the word heir of the body but in the  last case the same word be still use none can claim who be not complete heir  male by purchase but in this case he seem to have do with Robert family when  he limit it to he and the heir male of his body and that he intend after it  shall go as the law direct Lechmere speak to the same intent that the pound  Gilbert give mrs newcomen can only be a recompense for the estatetail limit to  Robert that he only postpone his heir for the sake of Robert and his issue  male and whenever they fail his heir must come in that indeed of late day  limitation of this kind have be carry much far than in ancient time but he  think they ought not to be carry any far for that will shake a great many  Settlements and destroy the peace and quiet of many family that the case of  Burchett and Durdant be the first case that make any alteration in the  construction of devise of this kind and say in mandevill case coke light b it  hold quite otherwise that there be a great deal of difference between a lineal  heir male and a collateral heir male and in that no case have be carry so far  as to let in a collateral heir male unless he be complete such that in the  case of Burchett and Durdant the whole stress and foundation of the resolution  be on the word now live which they hold to amount to the same as heir apparent  and yet that case be strong oppose and go under a great litigation that in the  case of Beaumont and long the word then beget be hold of the same force as the  word now live be in the other case and that case go on and for want of such  issue which be plain explanatory and show that the word heir be only mean the  issue of his aunt long but here it be and for want of such issue male which  still preserve the notion of legal heir and to take by purchase he must be  both heir and male which in this case he be not that the case of Counden and  clerk have be always cite upon these occasion and be never yet doubt to be law  that my Lord Hobart in that case be clear of opinion that the statute de gift  be only to preserve the descent to the heir male of the body not to direct  take by way of purchase that by   light c b if a Alan have a son and daughter  and land be give to the daughter a a the heir male of the body of the father  she take only a estate for life and the other limitation be void because she  ought to be both heir and female to take by Gilbert report er p purchase which  she be not in this case the brother be heir and Mr Ayloff argue to the same  intent and say that he that will take as heir male by purchase must be  complete such or otherwise he can it take on the other side it argue by sir  Joseph Jekyll that there can be no sound reason assign for the difference  between the heir male take by descent and when he be to take by purchase that  at commonlaw before the statute de gift such limitation be take notice of and  allow to be good that in a will the intent of a testator who be suppose to be  weak council be always to be regard that in the case of pibus and Mitford my  Lord hale be of opinion that if the heir male by the second venture can not  have take by descent that he may have take by purchase that the case of  Beaumont and long be a case in point for they though this be a much strong  case for the personal legacy give to the heir at law be give but once but here  the pound be limit to the heir so as in some part to resemble land for it to  go to her old son if any and if not then to her executor c that there be no  difference between the Gilbert limitation for want of such issue and for want  of such heir that in neither case will it be carry far and so it hold in dyer  Trenchams case that the word then beget in Beaumont case will be of no weight  to direct that resolution for my Lord coke tell we in his Inst p that bring  into existence and to bring forth be the same the attorney general to the same  intent that if this have be a estatetail in sir Robert the great grandfather  there can have be no doubt the defendant will have take as heir male of his  body that in this case the intent of the testator be plain to exclude his heir  general that he have sufficient provide for her by give her pound that the  meaning of the book which say the word heir be not a good name of purchase be  no more than that be not a sufficient description of the person who be to take  but if by the circumstance he be so describe as to notify who be mean then it  be a sufficient name of purchase vide Eq c Abr c and so be the opinion of my  Lord Anderson in his report in Shelleys case that a limitation to the heir  male of the body of one who be dead be quasi a estatetail in the dead person  that take it in that sense will reconcile all the difference S and answer all  the difficulty that have be object against it and that it to be take in this  sense Leon cro Elizabeth light sect cro car Hodgkinson and manhood and Mod and  Mod the case of Southcote and Stowell that this differ from the case of  Counden and clerk for the heir male be not limit or mention to be of his body  as in this that the case of Elizabeth at the end of pibus and Mitford in vent  be a case in point with they Mr Cowper to the same intent he think the  distinction take by the attorney general will reconcile the difference and  destroy all the fiction of the law against they that it will take away all  incertainty of the description of the person and carry on the descent as the  testator intend it that if this notion of its be a estatetail in the great  grandfather be but a fiction yet it may be make use of to destroy another  fiction which exclude the heir male from take sir Robert Raymond to the same  intent that general speak a limitation to the heir male or heir female of such  a one will carry it only to those who be complete such but where there be any  word which will amount to a description of the person so as to show who he  mean by those word there it will be sufficient though he be not heir male or  female in a strict legal construction especial where the heir general be  exclude as in this case as to the objection that the pound be a recompense  only for the loss of the first tail he say it must be take as a recompense for  the whole for the defendant newcomen can no more take under the limitation to  the heir male of the body of the great grandfather than she will under the  first limitation to Robert in tail and therefore the recompense must be  suppose to extend to the whole and cite a case of baker and wall in c b  Paschae W rot yet a person may take as special heir where the intent be  manifest to exclude the heir general Benson to the same intent that the will  of the testator be to be observe as far as it may be that it here in the case  of a trust which this court have the direction Gilbert of that they have  sometime vary from the rule of law and when they have so do the court of law  from the inconvenience that will otherwise follow have come to the rule of the  court of equity as in the settlement of term for year beyond a person be life  and so they may in this case Mr William on the other side put this case if a  man have issue a and b and a Gilbert report er p have issue a daughter and die  and the grandfather devise a rentcharge out of his estate to the daughter of a  and then devise his estate to his heir male no doubt but the second son shall  take though the daughter be heir and say they come into this court only for  direction how they shall be settle Lechmere by way of reply say that the  notion advance by Mr attorneygeneral that the heir male of the body of the  great grandfather shall be in quasi by descent from he be entire new and be  attend with very great inconvenience for then Edward Barkham will be quite out  of the case suppose the sister have be dead have a son he will be complete  heir and male too and yet he can never take because derive through a female  and if Edward Barkham be to bring a formedon he can not bring the esplees in  his great grandfather and cite light sect and my Lord coke opinion thereon and  the case of Mandeville there cite Lord chancellor this will be perfect  executory a conveyance be still unexecuted and the come into this court to  direct the manner of it suppose Edward have be heir and heir male of the body  of the great grandfather the conveyance will have be make in the very word of  the will for then he can not take at all it be like the case of  marriagearticle for settlement of a estate upon the husband and the heir male  of his body yet when they come to this court for a specific execution the  court model the settlement so as to make it effectual and will give the  husband but a estate for life the special heir male in this case be certain  within the testator intention to take but as it have be so solemnly argue he  will take time to look into the book before he will give his opinion but say  he be strong of opinion for Edward the special heir male and think the  settlement ought to be to he and the heir male of the body of the great  grandfather vide the case of starling contra Ettrick