Bulstrode price plaintiff against atmore defendant enter trin James b r rot a  action of trespass and ejectment e Leon more Ro Abr cro James post in a action  of trespass and ejectment the plaintiff declare of a lease make unto he by one  smith and upon not guilty plead the jury find a special verdict upon which  special verdict the case appear to be this the Lord Windsor be seize of land  be the land in question Elizabeth do make a lease of this land unto Thomas  more for the term of year by force and virtue of which lease Thomas more  possess do make his last will and testament and thereby do devise the say term  and the occupation thereof during all the say year and all his interest  therein unto Margaret his wife if she shall so long live and continue sole and  if she die within the term then he devise all the residue of the year then to  come unto John his son and to the heir of his body and make Margaret his wife  sole executrix of his will and die Margaret the executrix enter especial claim  this term as a legacy John the son die have issue live his mother the first  devisee and make his wife executrix of his will Margaret the first devisee  make her will and die within the term and before any assignment make of the  term the executor of Margaret assign this term over unto atmore the defendant  the widow and executrix of John with her second husband assign this lease over  unto smith the lessor of the plaintiff so that the only point in question be  whether of these two assignee shall have the residue of this term the  determination of which question rest only upon the consideration of the  validity of the second devise of the residue of the term unto John the son  whether the same be good or not and whether the mother be the first devisee by  her act may prevent this second devise whether the executor of John and their  assignee be the lessor of the plaintiff shall have this contingent remainder  in the term John be dead in the life time of Margaret the first devisee upon  the first open of this case the whole court be clear of opinion that the  executrix of John shall not have this for that by the death of John in the  life time of his mother the first devisee and so before the possibility do  fall this possibility be now quite go and to this purpose be cite wed and  Elkingtons case in Plowdens commentary foe and coke part foe the rector of  Chedinglons case brook case h foe pl temps h foe pl e Br case foe pl h dyer pl  e dyer pl marim dyer pl the word here in this principal case be that the wife  of the devisor by the devise shall have occupy and enjoy all his interest in  the term if he shall so long live the court upon that which be now urge be of  opinion that the assignee of the executor of Margaret the first devisee shall  have the remainder of the term but the court at this time will not overrule  the same but give further time for the argue of it and accord at another time  S term Trin James Br Mr Dason of the middle temple argue for the plaintiffIn  this case these two question be considerable first whether this devise in  remainder of a term be good or not second admit this devise of the remainder  be good to the son then when he die in the life time of his mother the first  devisee and who die also within the term whether the executrix of the son  shall have the residue of the term by this devise that the exec rix of the son  shall have the same and so consequent the plaintiff here have a good title to  he derive from the assignee of the executrix of the son and the devisee in  remainder the determination of this rest only upon the true construction of  this will make by Thomas more e brook case foe Bulstrode er p plan brook title  grant plan brook title lease plan a man possess of a lease for forty year  grant so many of the year as shall be behind at the time of his death this be  a mere voidgrant for the incertainty of it but such a devise by testament be  good Elizabeth dyer plan a termor grant Bulstrode his term habendum after the  death of the grantor this be a void babendum and the term passes present by  the premise as it be there adjudge but all this in case of grant as to  construction of will such a remainder limit upon a grant be void but otherwise  it be in case of a will and the reason of this be give in paramour and  Yardleys case in Plowd Com foe because that the maker of will for the most  part be ignorant of the law and of the rule of law and in this regard a  favourable construction be to be make of will and they be to be construe  accord to the intent and meaning of the testator in book of assize plan book  of assize plan Petkins foe plan a man devise that his executor shall sell his  land and distribute the profit for his soul in pious use distribute the judge  expound this for to be a conditional estate and feesimple as it be in  Littleton foe plan that if the executor do not sell the heir shall enter and  so in Paramomi and Yardleys case before remember where a man devise land to  one and his heir and in the Iatter part of his will be grant a rend to another  this Iatter grant and devise by the intendment and construction of the law  shall be first accord to the intent and meaning of the devisor otherwise this  devise of rend out of land before devise shall be void e brook title devise  plan a man devise the occupation of his plate to one for life and that  afterward this shall remain unto another this be a good remainder h brook  title do plea brook title chattel plan lessee for year devise his term or  other his chattel or good to one for life the remainder to another and die the  devisee enter and do not alien in his life time nor give sell nor yet f orfeit  the good he in the remainder shall have the same but if the first devisee do  sell give or forfeit they he in the remainder be then without remedy h dyer  plan a termor devise his term to his old daughter and to her issue the  remainder to his young daughter the old die without issue her husband alien by  Baldwin and Shelley the young daughter be without remedy because it be a void  remainder of a term as it be of a chattel personal Englesfield to the contrary  by reason of the intent and meaning of the devisor e dyer plan lessee for year  devise his whole term to a proviso that if be die live S then the residue for  to remain to I S a alien and die I S be without remedy Marive dyer plea he in  remainder be without remedy where the first devisee alien coke part foe b in  Fulwoods case resolve that such a remainder man can assign his remainder over  before it happen the same be but a bare possibility and not assignable over  coke part foe b in Mannin S case where it be say that it lie not in the power  of the first devisee to bar he which have the future devise for that he can  transfer more over unto another than he himself have as it be there resolve  mich and Elizabeth in the king bench Thomas pierpoint lessee for year devise  his term in these word I devise my lease to my wife during her life and after  her death I will the same to go to her child unpreferred make his wife his  executrix and die she enter and possess her self ration gift embassy and marry  with sir Thomas Fulleshurst against who one recover debt in the court of c b  and by force of a become facias to the sheriff the term be sell the wife die  first in this case it be resolve that there be no difference where the term  and where the use and occupation of the term devise and with this agree the  three resolution in Mannings case   part foe b second resolve that by the sale  either by though wife or by the sheriff by force of the become facias after  that the wife be of this possess as of a legatory devise this shall not  destroy the executory devise although that the person to who this be devise be  then uncertain as long as the wife be live and that this possibility can be  defeat by any sale make by the first devisee all which appear in Mannings case  the second point here be whether the executrix of John more shall be in the  same degree here as the testator be in that she shall be in the same degree  wherein it be Bulstrode to be consider whether this be a interest in John more  the son or a contingent possibility this be a interest in he and not a  contingent possibility and Bulstrode er p then the same be well assignable  over and so the plaintiff come in under the assignee have a good title and so  pray judgement for the plaintiff William justice the executor may have a  possibility if a lessee for year grant this to one if he shall live so long  this be good here in this principal case this be a interest in the devisee  John and not a possibility it appear by Weldens case in the commentary that a  devise shall have a reasonable intendment and construction as by construction  to have the Iatter word in a will place first and it be not strange that two  may have a interest in one and the same thing here John the son have a good  interest in he the which shall go to his executor and here the word heir be a  word of limitation but not of estate Henry Yelverton argue for the defendant  three point have be here move in this case two of which be to be agree but not  the three that this be only to be argue be the sole point that the will here  be good be not to be question and that the son here be likewise to have the  remainder of the term after his mother death this be very clear and no way to  be question but when John the son die as in this case here he do live his  mother and before his remainder do fall whether his executor now shall have  this  is the sole and only question considerable in this case and here the  executor of the son shall not have this and then consequent the assignee of  the executor be the lessor of the plaintiff can have no title nor the  plaintiff under he and in this case it be to be consider whether at the first  by this will John more the son have a bare possibility or a interest if no  interest but a possibility then Weldens and Elkintons case in the commentary  be our express case in boundary and the judgement give there in that case be a  judgement in point for the defendant here and the reason give there make for  the defendant here there it be say to be a interest and therefore the son to  have it and so his executor if he die before it happen but here it be no  interest but a bare possibility in the son as it be now agree at this day and  so be it hold pasch Elizabeth in the c b in carter case and in Hemmingtons  case Elizabeth in both of they adjudge that a release of this be void and  therefore no interest coke pa b in Fulwoods case our case be there put for to  be a possibility and so this not to be grant by the son in the life time of  the mother nor yet to be release ex hoc sequitur this can be no certain  interest but only a bare possibility the which can go to the executor it  appear by the rector of Chedingtons case coke pa that a contingency shall not  go to a executor here in this principal case there be only a possibility in  John his son and no interest because that the wife may survive the son and  live out the whole term and then nothing can come to the son and therefore  this do sound to be only in possibility and not in interest also the executor  be not to have anything if there be not a interest in the testator or that the  same have relation to some former grant here this estate which John the son be  to have by this devise the same be not by he grantable over releasable  extendable or assignable and therefore this be no interest in he but a  possibility and so when be himself die before this happen this shall not go  unto his executor and so the plaintiff claim under a assignee of the executor  of John can have no good title and therefore be pray judgement for the  defendant Fleming chief justice John more the son by this devise have nothing  but a bare possibility be have no manner of interest but upon a mere  contingent and casualty and he die before this fall it be very plain and clear  that his executor shall not have this possibility William justice it may be  make a good question whether this remainder of a term be good or not and in  this there will be a difference vhere a man do grant the land it self and  where the term Edward case put coke pa foe in the rector of Chedingtons case  be adjudge contrary to Weldens case in the commentary a term grant to one if  he shall live so long and that if he die within the term that it shall remain  to another this be resolve in Bulstrode jewel and spark case to be void  remainder for here de least non curate law the law make no account of a  remainder upon a lease for year after the life of another Fleming chief  justice John the son have here by this devise a good possibility in remainder  of the term but where be die before the same fall as in principal case here he  do this shall never go unto his executor William justice there will be a  difference where one have a term for year and do devise the land to another  for such a time if he shall live so long and if he die within that time then  the same for to remain to another this be a good remainder but otherwise it  Bulstrode er p will be if be devise all his interest in the land to one for  life and if he die within the term then the same to remain to another this be  a mere void remainder for that no remainder here can be of this after a life  in be Flem chief justice differ in opinion herein that such a remainder of a  term be good but that the same shall not go to his executor where the testator  that have the remainder die before the same bapned as it fall out in this  principal case and in this all the whole court be of opinion against the  plaintiff that this executor of John the son shall not have this possibility  in regard that the testator which have the remainder die before the same  happen and be attach in he and so the plaintiff claim under the assignee of  the executor of John the son who make the lease to he have no good title and  therefore by the rule of the whole court judgement be give for the defendant  and so enter S quod to express grief will to take in hand per billam notam by  the whole court that in a action of debt where the defendant may wage his law  if he confess part of the debt and wage his law for the residue and a  judgement be give and enter for the plaintiff for that which be confess after  this judgement the plaintiff can be nonsuit as to the residue but he ought to  appear when the defendant come for to wage his law for this part of the debt  notam that where the king be party in a trial here if the other side challenge  a juror he ought here to show his cause of challenge present and two triors  shall be choose S the two former which be swear and they be for to inform the  court whether for this cause show or for any other cause the juror challenge  be indifferent or not