bland versus bland in linc inn hall Feb sir John Bland the grandfather by his  will in devise to his wife lady Ann Bland and her heir his estate in  Lancashire and Cheshire provide she pay all his debt and also raise a sum of  pound to be pay to his daughter Meriel who afterward marry sir hill Jacob sir  John Bland the grandfather die leave his widow and sir John Bland his old son  who upon his marriage with lady Charlotte finch and in consideration of her  portion of king enter into a settlement in the year in which his mother join  and by that settlement the family estate in Yorkshire and part of the land in  Lancashire and Cheshire which be devise by the will of sir John Bland the  grandfather to lady whether as aforesaid be settle on sir John Bland for life  then for lady Frances to receive a annuity of pound per annum for her jointure  thereout remainder to the first and other son in tail male remainder for a  term of year with other remainder over and at the end of Cox the settlement  there be a proviso that if sir John Bland shall at any time after the birth of  a son of that marriage be mind to alter the use or estate of the premise  thereby limit to any son who shall then be his old or only son by the say lady  Frances of or in the say premise or any part or part thereof so as to reduce  such son to be tenant for life thereof with remainder to trustee to preserve  contingent remainder with remainder to the first and other son of such first  or only son in tail male and signify such his intention by deed or will  execute in manner therein mention then and in such case the estate or use  therein before limit to such old or only son and the heir male of his body of  and in the say premise or such part whereof the use be intend to be alter as  aforesaid shall from thenceforth cease and determine and in the stead and  place thereof these present shall be and endure as to the premise whereof the  use shall be so intend to be alter to the use of such son for life with  remainder to two trustee to be for that purpose therein name and their heir  during the life of such old or only son in trust to preserve the contingent  remainder to be limit as aforesaid and from and after the decease of such  first or only son then to the use of the first and other son of such son in  tail male proviso that none other of the use of the settlement except as  aforesaid shall be alter and as to the other part of the devise estate in  Lancashire and Cheshire they be declare to remain to lady Ann in fee subject  to the debt and legacy of sir John Bland the grandfather with a proviso that  if the same shall not be sufficient to answer the say debt and legacy and also  a further sum of pound to be charge thereon if lady Ann shall think fit for  the additional portion of her daughter lady Jacob then lady Ann shall be at  liberty to raise so much as the say lastmentioned estate will not extend to  satisfy so as the same do not exceed pound in the whole out of the other part  of the say devise premise which be settle to the use of the marriage as  aforesaid Cox in lady whether the grandmother of the present defendant make  her will and be entitle to the several estate before mention by the will of  her husband she devise all her real and personal estate to sir John Bland the  father of the defendant his heir executor administrator and assign Chargeable  with the payment of all her husband debt and her own and also with the pound  mention by her husband will and also with the further sum of pound which she  direct to be pay as a additional fortune to her daughter lad Jacob the will  then say and it be my earnest request to my son sir John Bland that on failure  of issue of his body he will some time in his lifetime either by will or any  other write settle the say premise or so much thereof as he shall stand seize  of at the time of his decease so and in such manner as that on failure of  issue of his body the same may come to my daughter mrs Jacob and the heir of  her body c in sir John Bland the father make his will and as to his real  estate in Yorkshire Lancashire and Cheshire which be unsettle at his marriage  and be then absolute in his power he give they to his wife lady Frances for a  term of year to commence from his decease and to such person as she shall by  deed or will and to act in her stead in trust to raise such provision for his  young child as he shall thereinafter direct and pay all his debt legacy and  funeral expense and he also bequeathe to her all his personal estate  whatsoever to the same use and purpose as his real estate but he will not that  any of his plate or picture shall be sell to any other person than his next  heir who shall have the power Cox er p of buy any of they which his wife can  spare at a price to be fix by two broker but as to all his family picture his  will be that the same shall remain for the use of his next heir John Bland and  the heir male of his body provide he shall give sufficient security to a and b  not to molest they on account of certain lease make to they by the testator  Cox in perpetuity but in case he shall refuse or neglect so to do for the  space of three year after the testator death then his will be that his wife  shall retain they for the use of his old and other son in tail male and in  case he shall have no issue male to the use of the old son of Hungerford Bland  so that the say picture may not be alienable from the person who shall inherit  the title of baronet in which manner he will also that all his plate shall  descend which shall remain in the hand of his wife at her decease which she  shall not have the power of alienate but in case his old son shall refuse to  pay the price to be set upon it by two broker he shall retain it for the use  of his old son to be deliver to he at the age of year the testator then  proceed to give several annuity to his young child he then declare his will to  be that as soon as such annuity and his debt and legacy and funeral expense  shall be pay the say term of year shall cease and he give the land comprise in  the say term from and after the expiration of that trust to certain trustee  until the defendant sir John Bland have a son of the age of year to who they  shall deliver up the possession of all his real estate comprise in the say  term with all the arrear and profit that shall have accrue before that time  with this proviso however that he shall entail all the say real estate on some  or one of his brother if he shall have no son who shall arrive at the age of  year who shall come next to the title of baronet he then declare that he  insist on the punctual payment of his debt and legacy and that neither his  real or personal estate shall be put in the power of his son John but be  preserve for the use of his old and other son in tail male and after they to  the use of his the testator son Hungerford and his first and other son in like  manner he then proceed to recite the power reserve to he by the marriage  settlement and in pursuance thereof he make and appoint his son John to be  only tenant for life of the premise with remainder to his heir male Cox this  case be argue by almost all the gentleman within the bar but their argument be  in general allude to by the Lord chancellor in his opinion it will be  sufficient to transcribe that Lord chancellor Hardwicke this bill be bring by  the young child of sir John Bland and other to have the pound and pound pay  accord to the will of lady Ann and that the trust of sir John bland will may  be carry into execution and inter alian that the rend of sir John bland estate  may after payment of debt and legacy accumulate till sir John Bland the  present defendant have a son of the age of and that as to the other premise  sir John Bland be tenant for life only may be restrain from cut timber upon  this bill one question will be with regard to those land devise in sir John  bland will by the word my real estate in Yorkshire Lancashire and Cheshire  which be unsettle at my marriage and which be absolute in my power it be say  the land contain in lady Ann will will not pass by these word because there be  a charge upon they by the grandfather will and this charge be take notice of  in the settlement as a further security for the raise money Payable to young  child but notwithstanding that as the fee be by the settlement again give to  lady Ann I be of opinion these may be call land unsettle at his marriage there  have be great dispute about what may proper be call land in settlement and  land out of settlement and in the case of Stroud and Mitton and Chester and  Chester it be determine that land only mention in a settlement be not to be  call settle land unless the use be declare in settlement but the present  instance be a very strong one for with regard to the marriage they be total  unsettle and lady Ann leave the absolute mistress of the estate another  question be whether this be such a estate with regard to the land that pass by  the will of lady Ann as he can devise and this depend upon know how Cox far  the general devise to sir John Bland be by that will restrain by the request  and at law there be no question of this for the estate be to he and his heir  and therefore vest in he a fee but the point contend for be what estate he  have in equity whether in fee in tail or for life and the doubt arise on the  earnest Cox er p request to give this estate it be urge on the part of the  defendant that this request be a direction to settle the estate as be there  mention and be imperative the same as if she have devise it in such a manner  and therefore in equity he be no more than a trustee to limit this estate to  the use there mention and for that purpose it be insist that any desire in a  will be equal to a devise because a will be no more than a declaration of the  testator what he will have do after his death and if this be sufficient  declare it must take place but it be necessary for a person in his will velle  not only to strive for and to ask and whether such expression be declaration  of the testator absolute will and pleasure or only a request to be grant or  refuse depend upon the circumstance of the case there be many case where  expression of this kind be consider as direction in mason v Emery the word be  I desire he at his death to give in Massey v Sherman hope and not doubt and be  well satisfy and put a trust and confidence in her that she will dispose there  can be no question but that this be a direction to her how to act the word  trust and confidence show that nothing be leave to her but the choice whether  she will give it among all or to some only the question here therefore be  whether the word of the testatrix be imperative and it be plain they be not so  there be no request to settle the whole land or any particular part but a  power be leave in he to dispose of sell or give away the whole estate in his  life and only so much as he shall stand seize of at his death she request he  shall settle it be as much as if she have say I leave it to you to dispose of  as you think fit but I shall be glad if Cox you will give as much as you can  spare so and so sir John may have sell this or settle it for the advancement  of a son or daughter it be object that the circumstance of the case occasion  these word that the estate be subject to her and her husband debt therefore he  must have a power to sell and that it be as much as if she have say he shall  settle so much as remain unsold after all the debt pay but no such  construction can be make for what he say be at the time of his death and this  have no connection with the payment of debt and legacy and this be very near  the case of attorneygeneral v hall which be hard with the assistance of sir  Joseph Jekyll and Lord chief baron Reynolds Thomas hall by will give all the  rest and residue of his personal estate to his son Francis and the heir of his  body but in case his son shall depart this life leave no heir of his body then  I give so much as he shall be possess of at the time of his death to the  corporation of goldsmith upon trust for such charity bill be file by  attorneygeneral to have this estate apply to the charity upon the contingency  which have happen but it be hold that this bequest do not take place and sir  Joseph Jekyll and Lord chief baron Reynolds find their opinion on the word so  much thereof as he shall be possess of at the time of his death otherwise the  contingency will not have be too remote because confine to failure of issue at  the time of his death but here be a power or property leave in he to dispose  and the testator have give nothing but what he shall be possess of at the time  of his death this show he intend his son shall have the clear property and  therefore the devise over be void it be object that this be a power give to he  to dispose during his life and though he hold this estate for life or in tail  only there may be such a power give he for a particular purpose but this will  not answer the will for she have give he a feesimple and no power be give but  what flow from the estate she take it for grant Cox from his have the fee that  he can sell and dispose of it as he please and therefore she request and by  the whole pen of the will this request be subject to his direction I do not  lie it down that in a will a request may not amount to a legacy but it shall  be limit to some certain thing or for some certain part of a thing and not  leave absolute to the pleasure of the person to who the request be make beside  have a settlement be make in his lifetime in pursuance of this request he will  have take a estate tail for it be to go over on failure of his issue which  amount to a estate tail she have give estate tail to all the other in  remainder and it will be absurd to suppose she mean he shall take a less  estate than the do and it be plain she know the difference for to some of the  more remote relation she give estate for life with remainder over to their  first and other son therefore sir John Bland the father have a estate tail and  may have suffer a recovery and then the question will be if a man have a  estate in fee at law and a estate tail in equity and devise the estate whether  this court will assist the remainderman in tail against the devisee Cox er p I  own I shall doubt about it but that need not be enter into now for without go  into that question I think the estate passes by the will of sir John Bland  another question will arise on the power reserve in sir John bland settlement  saint whether it be a legal power and dly if proper execute as to the validity  of it I will give no opinion upon it at present it have create great  conversation in Westminster hall but never receive the determination of a  court this kind of power be strike out first by the late Lord Nottingham  father to the present in conjunction with his brother Mr finch of the temple  to be sure the present be not so extensive as that in the late duke of  Marlborough will for this be confine to a single person but it seem to  continue and confine the estate further than usual by live so small a estate  as for Cox life to a person not in be and though I will not call it a petuity  but have there be a necessity of determine his to law or determine it myself  assist by the commonlaw judge but on the and point I be of opinion that this  power if it have be good yet it be not we execute by the will of sir John  Bland these power must be strict execute the power require that he do declare  his intention to reduce the estate to the son into a estate for life with a  remainder to trustee to preserve contingent remainder and after his decease to  his first and other son in tail male which he have not do for he only say I do  accord to the power reserve to I by the settlement c make he only tenant for  life with remainder to his heir male it be say at the bar that it be  sufficient for he to declare his intention of alter the old use and the other  use will take their rise from the settlement but that be not sufficient and it  must be look upon as strict as if a ejectment be bring and at law it be  evident this will have amount to a estate tail in the ancestor but suppose a  court will construe this into a estate for life in sir John Bland with  remainder to his first and other son in tail then it will not be good for here  be no trustee to reserve contingent remainder for the trustee appoint be only  for the management of his last will and not for the use of a settlement make  at his marriage it have likewise be say that this execution shall be construe  favourable because it be reserve to the original owner of the estate but a  court will never supply such defective execution of a power unless when  execute for a valuable consideration or in support of or as maintenance for  wife and child I must therefore dismiss the bill as to the starve waste as to  this part of the promise in question but do not any way give a opinion how far  the create such a power may be good accord to law Cox as to the devise to  trustee after the determination or cesser of the estate of year to the lady  Bland that must be look upon as a devise in fee because the trust can be  perform without it as to the direction of make it over to the first son of sir  John Bland this be the most difficult part of the case for by these word there  be no limitation to the first and other son of sir John Bland either in law or  equity but it must be couple with another clause in the will which say it must  be preserve for the use of his old and other son in tail male as to the rend  and profit that be to accrue till sir John Bland have a son age I be of  opinion these will belong to sir John Bland the defendant for by the word of  the will these profit and arrear can never go to Hungerford the plaintiff for  the bequest be that they shall go absolute to the first son and there be no  remainder over and if there be it will not be good for it be a limitation of a  personal thing this case very little differ from that of Hopkins and Hopkins  for where there be a proviso that none of the person to who the estate for  life be limit shall be in possession thereof until the age of and then to go  to such person as shall first be entitle there be none of the remainder man in  be and no proviso what be to become of the rend till a son be bear and  therefore they be look upon as a residue undisposed of and go to the heir at  law here be a attempt to give the profit of a estate to a person not in be  which can be do and a man can say negative my heir at law shall not have my  estate but he must make a complete disposition of it to somebody else  therefore I be of opinion that sir John Bland be entitle to the rend and  profit till a son be bear his lordship declare the will of sir John Bland to  be establish c and direct the pound and pound to be raise for the benefit of  lady Jacob and to be apply in manner therein mention and his lordship also  declare that the estate comprise in the will of lady Ann subject to the charge  aforesaid do pass by the will of sir Cox John Bland as part of his trust  estate and as to the power reserve by the Cox er p say sir John Bland by the  marriage settlement his lordship declare that sir John Bland have not by will  well execute such power and therefore that it be not necessary for the court  in this case to give any opinion whether the say power be good in join of law  or not and as far as pray a injunction to stay waste the bill must be dismiss  his lordship also decree that the testator personal estate be to be apply in  payment of the debt funeral expense legacy and annuity give by his will in a  course of administration and the master be to take a account of the rend and  profit of the real estate of sir John Bland the father comprise in the trust  create by his will for the payment of his debt funeral expense legacy and  annuity that have accrue since death which have be receive by the defendant  lady Frances Bland and so much of the annuity give by the say testator will  and the arrear thereof and such of the say testator debt funeral expense and  gross legacy and the interest thereof as shall not be pay out of the personal  estate be to be pay and keep down out of the residue of the rend and profit of  the say trust estate after pay and keep down the interest of the say two sum  of by ship pound and pound and his lordship also declare that the defendant  sir John Bland as heir at law of his say father be entitle to the surplus of  the rend and profit of the trust estate after payment of such interest and the  grow payment of such annuity and also of the debt legacy and funeral expense  not satisfy out of the personal estate as have incur or shall incur during the  continuance of the say term of year mention in the will and also to such  surplus rend and profit as shall endure from the determination or cesser of  the say term until he shall have a son bear as be undisposed of by the will of  sir John Bland the father and as to such rend and profit as shall become due  after such son bear such son or any other party interest be to be at liberty  to apply touch the same and the conveyance of the trust estate and his  lordship Cox also declare that the family picture belong absolute to the  defendant sir John Bland but as to all the other picture and the plate sir  John Bland be to be at liberty to buy such of they as lady Frances shall think  fit to spare at a price to be fix by two broker but if he shall not buy they  lady Frances be to retain they for life and after her death the picture be to  be consider as part of the personal estate of sir John Bland the fat but the  plate be to be deliver to sir John Bland the son who be to deliver a inventory  thereof and retain possession thereof until he shall have a son bear who shall  attain his age of year and then any party be to be at liberty to apply touch  the same Reg lib a fol