case hopkins alias dare v hopkins march the that see cope v Arnold de g m g  Abbiss v Burney in re finch Ch d Stamford v Hobart cite atk see Lyddon v  ellison Beav SC can tempt Talb SC vern I h devise his real estate to trustee  and their heir to the use of they and their heir upon several trust  thereinafter mention these word be declaratory of his intention that the legal  estate so give shall be use to support all these trust and limitation after  declare part of which be to the afterborn son of I h and the court make such a  construction as support the intention be of opinion it be not inconsistent  with the rule of law and equity hear upon the d of march and stand for  judgement this day John Hopkins the testator have a large real and personal  estate make a disposition of both by his will and as to the bulk of his real  estate devise the same to trustee and their heir to the use of they and their  heir upon several trust videlicet for Samuel the only son of his cousin John  Hopkins for life and after his decease in trust for the first and every other  son of the body of the say Samuel to be beget successive and the heir male of  the body of every such son respective and for want of such issue in case his  cousin John Hopkins shall have any other son or son then for all and every  such other son or son respective for their respective life with like remainder  to their several son successive and their issue male and for default of such  issue to the first and every other son of the body of Sarah old daughter of  his say cousin John Hopkins for life successive with like remainder to their  issue male and for want of such issue the like remainder to the first and  every other son of mary second daughter of his say cousin John Hopkins and  their issue male and so carry on the limitation in like manner in respect of  the other daughter of mrs say cousin then in be and for want of such issue in  case his cousin John Hopkins shall have any other daughter or daughter then in  trust for their first and every other son in like manner and for default of  such issue in trust for the first and other son of his cousin Hann ah dare  with like remainder to her first and every other son and their issue male with  remainder over to other relation remainder to his own right heir then come a  proviso that none of the person to who the estate be thereby limit shall be in  actual possession of the whole or any part thereof till he or they respective  attain his or their age or age of and in the mean time the trustee to make a  handsome allowance for the education of such person and the overplus to go to  such as shall be entitle thereto this proviso be more full state in can tempt  Talb these be the several limitation and proviso material relate t the real  estate then he devise all the rest and residue of his personal estate in case  there shall be any after payment of debt c to his executor in trust to be with  all convenient speed lie out in the purchase of land and to be settle to and  upon the atkins er p same atkins trust and purpose in his will declare of the  real estate he be then seize of and make the trustee his executor Samuel  Hopkins the first devisee die before the testator which after the testator  death occasion the bring two bill one by John Hopkins and his daughter to have  a account and a execution of the trust and John Hopkins pray that as heir at  law he may have the profit till some person come in be capable to take under  the will as part of the trust undisposed of the other be bring by the trustee  that till a person be in be capable of take the profit may be accumulate to  increase the estate these cause be hear before the master of the roll in and  it be admit on all hand that if Samuel have survive the testator he will have  take at least a estate for life in the trust in possession and all the  subsequent limitation between he and the present plaintiff will in such case  have be contingent remainder but it be insist for the plaintiff in the  original cause that by the death of Samuel in the testator life that devise be  void and be to be consider as if it have never be insert and that if the  subsequent limitation can not take effect as contingent remainder they may by  way of executory devise and that they shall operate as they can ut res to  greater extent to be strong how to pass away for the present plaintiff it be  insist that by the death of Samuel the estate of freehold devise to he become  void and so consequent the contingent remainder and that the law can admit a  limitation in its original creation a contingent remainder to be by a accident  change into a executory devise the master of the roll be of opinion that the  limitation to Samuel Hopkins be to be consider as if it have never be in the  will and therefore that the devise to afterborn son be by future word in case  his cousin John Hopkins shall have any other son it be now to be consider as  the first devise and may take effect as a executory devise Lord chancellor  Talbot be of the same opinion on the appeal vide Cas in Eq in his time and  decree the trustee to deliver possession to the plaintiff John Hopkins of  particular estate and of the estate purchase by the testator after the make  the will and to deliver the deed and write to he and declare he be entitle to  the rend and profit devise to the trustee accrue since the testator death ante  n till some person shall be in be entitle to a estate for life in possession  which make no difference in the decree accord to the limitation in the will  and be entitle to the surplus produce of the testator estate after payment of  the annual sum charge thereon and direct a account of both the real and  personal estate and a like direction as to the personal estate for invest it  in land there be no direction give concern a conveyance of atkins the estate  but a general reservation and liberty to apply to the court as there shall be  occasion this be the decree then make and upon great consideration and as to  the point on which it be establish it be not dispute in this case because the  plaintiff here find himself by the present bill express on the foot of that  decree since that decree two new event have happen which have give rise to  this suit John Hopkins on the that of June have another son bear name William  who die the that of Dec and on his death the plaintiff the old son of Hann ah  dare have attain twentyone bring this bill to have a settlement make by the  trustee and first pray a estate may be limit to he in possession and also a  account of the profit during William life and that the surplus profit may be  pay to he Mr Chute for the plaintiff this be a contingent remainder and not a  executory devise for the estate for life in the first taker be a vest interest  and consequent the contingent remainder vest at the same time Payss case cro  Elizabeth the testator have labour to give to a unborn person what he  apprehend be never give to any unborn person before for he have restrain the  vest of the freehold and suspend it further than any court whatever have  attempt to do what we contend for be that admit this be a executory devise in  the second son of John Hopkins yet after he be bear whatever be executory be  then execute and the freehold estate for life vest in he with remainder to his  first and every other son and as he have die without issue male the contingent  remainder take place in the plaintiff Lisle v grey t raym S c atkins er p No  difference between the limitation which do come in be by the birth of William  and the limitation which will have come in be immediate if Samuel the first  son of the nephew John Hopkins have survive the testator but a hour the  proviso in the will be a abridgment of the power which be give to the first  taker of hold a estate for life and be for that reason void as much as if a  person shall appoint one executor and then restrain he from administer tailor  v bridal Mod the question will be whether notwithstanding William the son be  bear the whole rend and profit of the testator estate shall still accumulate  till the infant will have attain his age of or whether by the birth of William  the freehold absolute vest in he if a man in a will attempt to give such a  estate as the law do not admit and endeavour to raise such a contingency as it  will not allow they must take their fate accord to the rule atkins of law  reeves v long lev salk the case which introduce the statute of king William as  to unborn child executory devise have their original here but the reason of it  be so strong that the court of law soon conform to those rule No body be  entitle to take the profit under Lord chancellor Talbot addition to sir Joseph  jekyll decree but John Hopkins and the court be silent as to every other  person what be the terminus a quo under the last decree why until a person be  bear who be entitle to take a estate for life in possession for otherwise my  Lord Talbot will have add until such person arrive at the age of year it will  be repugnant to say that John Hopkins take a estate for year at the very time  that his estate as heir at law cease upon the birth of his son William be not  in be at the time of the executory devise and therefore to say it be still  executory be carry this doctrine further than be ever yet attempt for it will  wait long than the compass of one life for here be thelife of William who be  dead and the life of a person who be unborn Mr Noel of the same side the only  question whether the contingent remainder take effect in possession in the  plaintiff upon the death of the second son of John Hopkins or whether it be  still to wait till the birth of another son of John Hopkins as a executory  devise be introduce to support and assist the rule of law this court will not  construe a executory devise in such a manner as to overturn the rule of law  Lord chancellor Payss case be likewise report in Noy and different state from  what it be in cro Elizabeth Mr Noel it be only necessity that oblige the court  to construe it a executory devise at the time of the decree of Lord chancellor  Talbot but as here be a son of John Hopkins bear since the decree this  necessity cease and eastern instant the estate for life vest in possession in  the son the contingent remainder vest in the plaintiff the testator allow the  trustee to expend such a sum upon the birth of the first person who shall take  a estate for life in possession by way of education as be suitable to the  largeness of the estate he be entitle to at twentyon show the intention of the  testator that it shall vest in the first taker bear case salk Lord chancellor  the word immediate be put in at first by Lord Talbot in his decree in his own  hand but strike out afterward and stand now as have be before mention  videlicet instead of immediate estate for life in possession only estate for  life in possession Mr green of the same side cite dyer pollex where it be say  by a very high authority that the intention of a atkins testator be to direct  the construction of a will but if that intention though ever so plain be  contrary to law it be absolute void the question if the plaintiff shall have a  decree whether he be entitle only to a estate for life or to a estate tail by  virtue of the limitation to he for life remainder to the heir male of his body  he insist for the plaintiff that these be word of limitation and not of  purchase Mr Murray of the same side this be carry further than the law will  suffer executory devise to wait for here it must wait till the death of the  father John Hopkins atkins er p and the death of the son John Hopkins and the  rule be that it must wait only year or arise within the compass of one life  Lord chancellor Talbot in his reason for support of his decree say if Samuel  Hopkins have survive the testator he will certain have have a estate for life  and there can be no distinction make between the limitation in the will to  Samuel and the limitation to any other son to be bear of the testator nephew  John Hopkins that the contingency be to wait till the first person who shall  take a estate for life arrive at the age of twentyone be never consider at all  in the hear before Lord Talbot and never can because the profit be dispose of  by the testator himself in all case of property this court inviolable and  invariable adhere to the rule of law because they be positive and all the good  end of use before the statute be still preserve in the construction of trust  since the statute for be able sequitur law it be contrary to the policy of the  law to support a executory devise any long than till a estate for life come in  be upon which the contingency may vest a executory devise can be extend  further or a estate make unalienable any long than for a life in be or year  after such life Stephens v Stephens Cas in Eq in Lord Talbot time can tempt  Talb S c in the duke of Norfolk case select case in chancery it be say by Lord  keeper north that the measure of limitation in respect to the trust of a term  and of the legal estate of a term be all one and this court make no  distinction any more than the court of law vide Humberston v Humberston vern  Mr attorney general e contra money direct by a devise to be lie out in land  and settle in a particular manner be a mere executory trust and must be carry  into execution b that this court and therefore the personal be ten here be  distinguish from the real and liable to the trust Mr brown of the same side it  have be insist for the plaintiff that the limitation to he have take effect to  the exclusion of all other and it be pretend that trust in the case of  property must be govern exact by the same rule as legal estate atkins there be  several instance where this court have deviate from this rule as a dowress be  entitle to dower in a legal estate but can be endow of a trust see godwyn v  Winsmore post vol at law a man can convey a estate to his wife but in this  court he may do it by way of use har   Litt a n a as it be impossible at  commonlaw for a person to convey a estate but he must part with the whole  estate at the time to obviate this inconvenience the invention of use arise as  for instance if a man convey to a and his heir to commence within four year  during the intervene time the freehold be in abeyance and be a void remainder  but take it as a spring use the estate continue in the feoff and be executory  till the expiration of the four year see the essay on use and trust et seq et  seq the invention of trust to preserve contingent estate be to remedy many  inconvenience and among the rest to guard against the accident of a son be  bear after the death of the father a general legal estate here be convey to  the trustee in trust to preserve and answer the particular purpose of his will  and therefore in this case it be a general legal estate and general trust the  testator declare if Mr Hopkins have another son they shall be trustee for that  son which must mean that they shall be trustee of he estate likewise for when  a thing be give the mean by which it may be obtain be certain intend to be  give at the same time and it will be harsh to say in a court of equity who  chief jurisdiction arise out of trust that chancery will limit and restrain  the power of trustee where it be natural and necessary imply though not  express in term Videathe case of reeves v long lev the rule of executory  devise have be extend in Stephens v Stephens so far as till a child shall come  to the age of and for this reason because no person until that age be entitle  to convey in the case upon sergeant maynard will the court direct trustee to  preserve and support contingent remainder I though omit in the will itself  chapman v bless before Lord Talbot after Hopkins and Hopkins case in equity in  his time it be justice his lordship say in a court of equity to apply the  legal estate so as to atkins er p support the trust estate and your lordship  will I do not doubt preserve these trust in the same manner Mr fazakerley of  the same side the argument which the counsel of the other side draw to trust  from the rule of law I allow be very right where they be exact the same in all  circumstance but where they be not similar it be otherwise for if the reason  cease it will be absurd to construe they by the same rule Videathe rector of  Cheddingtons case   b a estate at law may be in abeyance but a trust be not so  one moment in equity for if there be a chasm of ever so small a duration it  will revert to the heir at law in salt atkins case Yelverton fol a case put  there by Lord chief justice Popham and agree to by all the judge and a much  strong one than the present it be not necessary that there shall be a trust at  all to preserve a contingent remainder many instance where this court have  spell out the intent of a testator though it be not express in word for by  implication this court have do what the testator intend be they in this case  appoint trustee for any particular purpose exclusive of another if they be not  then be they trustee in general for all the use of the will and among the rest  be to be consider as trustee to preserve contingent remainder the construction  we contend for will support the whole intention but what the plaintiff aim at  will defeat it in the great part of the will therefore we hope your lordship  will construe they trustee for the purpose we insist upon the preserve the  contingent remainder the case of Massenburqh v ash be not exact state in vent  but in the octavo of chancery case it be Charles Rep SC vern S c as to the  personal estate wherever there be a executory trust this court will mould it  in such a manner as may best answer the intention of the testator and  therefore I shall not trouble your lordship with case to this point when they  be trustee for the several purpose in the will it be absurd to say that they  be not trustee to preserve the contingent remainder which be one of the  principal purpose of the will and the testator have give the estate to trustee  during the life of John and during the life of whether the mother Mr Chute by  way of reply it have be insist by the gentleman of the other side that the  case of Samuel and William be the same and that the contingent remainder ought  still to be preserve I never hear nor ever meet with it that when a tenant for  life be bear with remainder to his first and every other son in tail that  trustee ever interpose any further than between such tenant for life and his  issue in tail and contingent remainders beyond this will be too remote to be  at all consider in the eye of the law such a distant remainder be not so much  as asset in this court Lord chancellor this can not be a executory devise  because there be a estate of freehold before it and therefore it be a  contingent remainder Mr Chute there be no difference between the present case  and Humberston v Humberston but only there several estate for life be limit to  person not in be and here estate tail be limit to future person unborn in this  case while John Hopkins be without a son be enter at the door of his testator  and have quiet possession as soon as a atkins son be bear he be turn out again  and if the son die he enter at the door again it have be insist upon that this  be a absolute estate of freehold in the trustee I be at a loss then to  conceive how they can subdivide this absolute estate into so many particular  freehold as they must do if they will preserve the contingent remainder for I  submit to your lordship that upon the birth of William a estate for life  actual vest in he and be not to wait till he arrive at the age of and that at  the same time the subsequent limitation of course cease to be executory and be  become vest remainder to take place upon the death of William without issue  and in this respect equity too will follow the law for as use before the  statute of use be the same as trust so since the statute of use trust be  consider in the nature of use before the statute vide chudleighs case I   a  Lord chancellor for the plaintiff it be argue that the estate vest in William  on his birth and be no long executory and consequent all the subsequent  limitation become remainder either contingent or vest accord to their  respective atkins er p nature and that those that be contingent not vest  either during or eastern instant that the particular estate of William  determine be now void and consequent the plaintiff as have the first remainder  vest in Mm be entitle to the estate in possession for the defendant this be  endeavour to be answer three way first that there be no necessity to consider  the limitation subsequent to that to the second son of John Hopkins as  contingent remainder but that they may subsist as so many distinct executory  devise and if one do not take effect another may second and which be most rely  on that admit that by the estate vest in William the subsequent limitation be  to be look upon as remainder yet such as be contingent be not destroy by their  not vest during his life but that the legal estate in the trustee be  sufficient to support they three that a determinable freehold in the equitable  estate descend on the heir at law and that be sufficient to support the  contingent remainder of the trust estate these point have be well argue at the  bar and there be I think some thing clear first that if those have be  contingent remainder of a legal estate or a use execute and no trustee insert  to preserve contingent remainder they will have be void second it be clear  that these subsequent limitation can be support as so many distinct executory  devise in the case of Higgins v Derby in salk salk before Lord Cowper mich Ann  the utmost that be say be that on the limitation of the trust of a term to the  first son and the heir male of his body which never take effect there never  have be a son that the limitation over to daughter may possible be good atkins  but in this case the trust estate vest in William and at least for life for it  must be admit that the proviso do not suspend the vest which be a freehold be  capable of support remainder and consequent accord to the doctrine in the case  of Purefoy v Roger sand the follow part of this paragraph shall run thus and  other authority the subsequent limitation ought to be consider as remainder  and in truth although the first estate in William who be not bear at the  testator decease be construe a executory devise yet be not the subsequent  limitation to be take as separate and distinct executory devise but as part of  the same devise per Lord Loughborough in Habergham v Vincent bro Charles Rep  from a correct copy of this case and all the authority ought to be consider as  remainder reeve v long Carth Mod S c Nealthy v Bosville Rep tempt hard Walter  v draw Com and Ves do v Morgan durn east and in truth the subsequent remainder  be to be consider as so many part of the same executory devise and when that  become vest in the first taker they remain no long executory the case be  therefore reduce to this question whether the legal estate in the trustee will  support these remainder before I proceed to the discussion of it I will  observe that it be not necessary in order to bar the plaintiff from have a  conveyance the follow part of this paragraph shall stand thus that all the  intermediate limitation between the estate vest in William and that limit to  he shall be good subsist contingent remainder but it be sufficient if some of  they be good per Lord Loughborough where above that all the intermediate  contingent limitation shall be good subsist contingent remainder but it be  sufficient if some of they be good by way of contingent remainder and still  subsist for then so long as they continue the plaintiff come too early and I  be of opinion that the legal estate in the trustee will support at least some  of these contingent remainder chapman v blisset can tempt Talb and post  Robinson v Robinson Ves in Bamfield v Popham p W Ves Lord Trevor say that it  be resolve that a cestuique trust for life can not destroy the contingent  remainder to his first and other son for it be not to be contend that all of  they be good and this on two ground first upon the plain intention of the  testator second that this intention be consistent with the rule of law and the  common principle of equity first as to the intention the present plaintiff  certain come before the court in a very unfavourable light for he claim under  the will and the testator bounty and at the same time endeavour to defeat the  great part of it indeed this be retort on the defendant the heir at law but  that be very different for he do not claim by the will or the testator  intention but paramount to that and only ask that which be not give from he  the testator can not frame a will that no one shall take his estate if he can  it be likely he will have do it to consider therefore and apply this intention  to this point first be devise his real estate to trustee and their heir to the  use of they and their heir so that it be a clear use execute by the statute  upon several trust hereinafter mention these word be proper and strong rely on  for the defendant as declare his intention that the legal estate so give shall  be use to serve and support all the trust and limitation after declare then he  proceed to limit the trust and when he come to the afterborn son of John  Hopkins he say in case John Hopkins shall have any other son then in trust for  all and every such other son for life with like remainder to atkins er p their  issue male c so that he express declare that they shall be trustee for those  afterborn son and consequent the court be to make a construction to support it  in such manner as they can but though this be the plain intention yet if it be  inconsistent with therules of law and equity it be to be reject atkins  therefore as to the second question the great objection be that by law  contingent remainder must vest during or at the instant the particular estate  determine and the only method find out to avoid this since chudley case   have  be to create a particular estate of freehold and vest it in trustee to  preserve the contingent remainder and there be no such limitation in this case  and it be say to be a maxim in this court that trust estate creature of equity  be governable by the same rule of property as legal estate in order to  preserve one uniform rule and measure of property and further that the owner  of a trust have the same power over it as he will have be it a legal estate in  the same interest or extent this be undoubted true in general but afford no  just conclusion in the present case first because the ground and foundation  the commonlaw go upon in make contingent remainder void in such case do not  hold in the case of trust this paragraph shall be as follow second because to  allow such of the limitation as be not too remote to be good will not affect  any rightful power of alienation in the cestuique trust which the law allow to  owner of legal estate and consequent do not tend to a perpetuity per Lord  Loughborough above second because to allow they to be good will not affect any  righIful power of alienation in the cestuique trust which the law allow to  owner of legal estate and consequent do not tend to a perpetuity three because  to require a new distinct limitation of legal estate to support the contingent  remainder in such a case of a trust will be quite nugatory as to the first the  ground on which the commonlaw require the vest of the contingent remainder  either during or eastern instant the particular estate determine be that a  freehold can be in abeyance that there must be a tenant of the freehold to  perform service to answer to a prcipe and all writ to be bring concern the  realty or otherwise there will be a failure of public service and public  justice but this hold not in the case of a equitable estate the trustee be  tenant of the freehold to perform service c but it have be object there be  equal mischief if he be not liable to answer demand and to be bind by decree  in this court that will not follow for if there be ever so many contingent  limitation of a trust it be a establish rule that it be sufficient to bring  the trustee before the court together with he in who the first remainder of  the inheritance be vest and all that may come after will be bind by the decree  though not in be unless there be fraud and collusion between the trustee and  the first person in who a remainder of inheritance be vest but that be of no  weight for fraud and collusion will unravel a thing as well at law as equity  there be a great opinion that this maxim of the commonlaw that there must be a  freehold can not be draw over to use before the stat of Henry chudleighs case  Rep per gawdy that if a man before the statute have make a feoff to the use of  one for year and after to the use of the right heir of I S this limitation  have be good for the feoff atkins remain tenant of the freehold but such  limitation after the statute be void for then the freehold will be in abeyance  for nothing can remain in the feoff as to the second reason if it tend to a  perpetuity it will be a great objection before the statute of Henry the judge  of the commonlaw give use very hard name and call they the product of fraud c  to remedy those mischief the statute be make to execute and bring the estate  to the use that after the statute the cestuique use be seize of the estate at  law as before he be of the use in equity and this the judge profess to adhere  to but notwithstanding that the necessity of mankind and reasonable occasion  in family oblige they in a little while to give way to use contingent use  spring use executory devise power over use be also foreign to the notion of  the commonlaw and can not be limit on commonlaw fee but be let in by  construction by the judge themselves upon use after they become legal estate  yet the judge still adhere to the doctrine that there can be no such thing as  a use upon a use but where the first use be declare there it be execute and  must rest for that estate therefore on a limitation to a and his heir to the  use of b and his heir in trust for d b S estate be hold there to be execute by  the statute and d take nothing dyer a b n c   b p W bagshaw v Spencer post vol  of this construction equity take hold and say that the intention be to be sup  atkins er p port it be plain b be not intend to take his conscience be affect  to this the reason of mankind assent and it have stand on this foot ever since  and by this mean a statute make upon great consideration introduce in a solemn  and pompous manner by this strict construction have have no other effect than  to add at most three word to a conveyance see the essay on use and trust it be  very true this will not have be endure if court of equity have not in general  allow these trust estate to have the same consideration in point of policy  with legal estate and give the same power to cestuique trust with respect to  alienation as if it be a use execute therefore a tenant in tail of a trust may  bar his issue by a fine a tenant in tail of a trust remainder over may dock  the remainder by a common recovery north v Champernoon Charles can carpenter v  carpenter vern nay some go so far as to say what follow shall be thus a  bargain and sale alone by a tenant in tail in equity shall have the same  effect as a fine vide per Lord Loughborough where above so vern Beverley v  Beverley vern contra legatt v jewel vern he may do it by feoff only bowater v  elly vern but all these be common assurance and righIful method of convey  estate for it be never allow that in trust estate a like estate may be gain by  wrong as there may be of a legal estate therefore on a trust in equity no  estate can be gain by seize abatement or intrusion it be true it may happen so  upon a trustee and in consequence the cestuique trust may be affect but that  be on account of bind the legal estate but on a bare trust no estate can be  gain by seize abatement or intrusion while the trust continue from the correct  copy of Lord Loughborough notice above it appear that the two follow paragraph  shall be read thus nor have court of equity ever support the destruction of  contingent remainder by tenant for life but have endeavour to support they  where there have be no remedy at law and so in case of mergers they have  revive term for raise young child portion where the term be merge at law for  the sake of creditor and other equitable purpose as in Powel v Morgan vern the  destruction of contingent remainder by tenant for life be consider as a wrong  without remedy and so strong a atkins tort that it be a forfeiture of his own  estate and therefore work a destruction of the remainder now if equity never  suffer any other wrongful act or any thing similar to gain or defeat the trust  estate while the trustee be in possession why shall this take place or the  court strive to preserve a power to cestuique trust for life the execution  whereof the law call a wrong it be in this respect to be compare to the case  of merger for though it be the doctrine of this court that the rule of  property and convenience hold inthe same manner with respect to trust as to  legal estate to prevent perpetuity yet in the case of merger there be many  instance where there will be mergers of legal estate and yet court of equity  have never suffer mergers of trust where the legal estate continue in the  trustee but have be against the merger if the justice of the case require it  three where the whole fee be in the trustee to require a new distinct  limitation to support contingent remainder will be whole vain and nugatory  suppose after the limitation to Samuel and his issue the testator have limit  over a remainder to I n to preserve contingent remainder can I n have take at  law No for it will have be a use on a use nor will he have take in equity for  the first trustee have the whole estate be trustee for all the beneficiary and  trust suppose such limitation have be to the first trustee they can have take  nothing more so that such a new limitation can have no operation the principal  objection be that the legal estate in the trustee and the equitable in the  beneficiary and trust be of different use and can draw over the one to support  the contingent remainder of the other and that a man may as well make use of a  estate execute by the statute I of use to support a contingent remainder of a  particular estate in a use the above paragraph shall be read thus the  principal objection be that the legal estate in the trustee and the equitable  in the beneficiary and trust be of different nature and the one can support  the other correct copy notice above I admit they be of different nature but  still the legal estate remain in the trustee to serve and support all the  trust but it be quite otherwise on the statute of use Henry c the word of the  statute be that every person that shall have any such use c shall from  henceforth stand and be seize c of such land c to all intent construction and  purpose in the law of and in such like estate as the have or shall have in use  trust or confidence of or in the same by which the legal estate be execute to  the use and the beneficiary and trust have the legal estate just in the same  manner as the use before the consequence whereof be read the follow part of  this paragraph thus that the legal estate either become vest immediate or if  not then the estate go over immediate to the next remainderman as it will in  the case of a commonlaw fee so it be construe in chudleighs case and if it  once go over it can never come back again correct copy above that as to person  in be the legal estate become vest immediate as they come in be provide they  come so in due time accord to the rule if commonlaw if not then the estate go  over immediate to the next remainderman as it will in the ease of a commonlaw  fee so it be construe in chudleighs case and if it go over by deed or will so  as the party take as a purchaser it be never draw back again atkins this show  that as to this question there can be no reason at all from the case of use  execute to mere trust but they stand on different foundation atkins er p these  be the reason which govern my judgement on this point and I own I can see no  inconvenience from it it must be admit that the testator may have do this as  to part of the remainder those that be capable of be support if he have use  proper word and if he have clear express his intention this court which be to  direct a settlement accord to his intention as far as it may stand with the  rule of law will take the proper method to effectuate this intention next as  to the case the earl of Stamford v sir John Hobart in bro p c notwithstanding  the distinction take upon it be a strong authority for this purpose sergeant  Maynard devise his estate to trustee and their heir and declare after his wife  death they shall convey the estate to the use of and in trust for sir h h for  life remainder to the first son for year if he so long live remainder to the  heir male of such first son remainder to the countess of Stamford for life  remainder c a conveyance be direct accord to the will exception be take to the  draught of the conveyance Lord Cowper declare that where article or a will be  improper or informal the court be not to direct a conveyance accord to such  improper direction but in a proper and legal manner which may best answer the  intention of the party and conceive the intention to be that the estate shall  be secure so far as the rule of law will admit instead of the word which  follow as above read thus and therefore interpose between the estate for life  and the remainder a estate to trustee to support contingent remainder though  there be no such direction in the will correct copy cite above vide etian  Baskerville v Baskerville post vol before cross remainder shall take place and  therefore order accord upon a appeal to the house of lord allege that this be  make a different settlement the order be affirm upon this principle that a  trust estate be in its nature executory it be incumbent on the court to follow  the intention of the party as far as the rule of law will admit the next be  the case of Humberston v Humberston SC Cox p W n vern and Cas in Eq Abr there  the testator have make a whimsical will devise his estate to the draper  company and their successor in trust to convey to the plaintiff for life  remainder to his first and every other son for their life and to their heir  male for life remainder to about fifty other person for their life and their  son for their life Lord Cowper decay it a vain attempt to make a perpetuity  but however that there ought to be a strict settlement which imply a direction  to the master to have trustee to preserve contingent remainder insert for that  be always understand by the word strict settlement it appear by these case  that however improper a will be pen the court will take notice whether the  testator intend a strict settlement and direct accord as far as the rule of  law will permit but a distinction be take between those case and the present  that they be case of executory trust where the will atkins itself direct a  conveyance but here be no conveyance direct but the trust only declare by the  will I admit the court have throw out such sort of expression but I think  there be no difference all trust be executory see bagshaw v Spencer post vol  and whether a conveyance be direct by the will or not this court must decree  one when ask at a proper time but I do not give any conclusive opinion to oust  that distinction in this will there be a plain declaration of the testator  intention that this shall be a executory trust and that there shall be in due  time a strict legal conveyance make by the trustee the first clause from which  such a intention may be collect be the proviso relate to the profit before the  person come into actual possession c till he or they attain and in the mean  time the executor to make such handsome allowance for the education of such  person and the overplus to go to such person as shall be entitle thereto here  be a intention plain declare that the trustee shall continue in possession of  the estate and receipt of the rend till one to who a estate for life be limit  shall be and the trustee in the mean time be to make a handsome allowance for  the education of such person out of the rend whether the direction for lie up  the surplus be to be support or not be immaterial to this question and after  attain the age of twentyone such person to have the possession that be the  estate to be convey the next clause be direct per and to James Hopkins one of  the trustee for pass service to encourage he in the care of the trust c to be  pay he halfyearly till some person shall come into possession c atkins er p  this be still fix the age of to be the time that such person shall have the  possession and consequent by construction entitle to have a conveyance of the  legal estate the next clause be that where he direct the residue of his  personal estate to be lie out c and convey to his trustee upon the same trust  c Videathe clause by which be plain mean to make as strict a settlement as  possible of the land to be new purchase and yet he connect they both together  upon the same trust but be this point as it will the case of chapman v blisset  can tempt Talb S c decree by ld Talbot in be a clear authority that the legal  estate in trustee will support contingent remainder even of a trust declare by  will where no conveyance be direct the case be I blisset after several  direction and charge upon his real estate devise all other his real estate to  trustee and their heir in trust to pay his son I b quarterly pound S during  his life and if there be any child or child he give the rest and residue of  his real estate for the education and benefit of such child or child and if  his son marry with such consent as the will mention pound per Ann to his wife  if without pound per and and after his say son decease give one moiety of the  say trust estate to such child or child their respective heir executor and  atkins assign the survivor of they c and the other moiety to the child or  child of Joseph c and if I b die without issue to such child c of my daughter  c with a remainder over the testator die I b marry and have son then die  Joseph who be the testator grandson have no son bear at the time of the death  of I b but have a son four year after and upon this a bill be bring by the  heir at law insist that these limitation be void particular to the son of  Joseph not be bear till four year after the death of I b the first question be  whether it be to be consider as a legal estate subsist in the trustee or  whether it be not a use execute by the statute Lord Talbot and myself on a  rehear be of opinion that the legal estate in fee be in the trustee and all  the limitation in the subsequent interest be trust the next question be  whether the limitation to the son of Joseph be good and if so whether as a  executory devise or a contingent remainder Lord Talbot be of opinion that it  may be good even as a executory devise in a legal limitation and the only  objection be that the limitation be in word de prsenti but he say the word be  to be consider as the testator mean they that he know Joseph be a infant and  young and devise a moiety to he S child know he have none must necessary  intend it future and therefore it be impossible to show a intention more clear  of child thereafter to be bear but he go on that when I b have a child bear  that have a freehold in the trust during the life of I b whether after that it  be to be consider as a executory devise or a contingent remainder the child of  I b have a kind of freehold in the trust itself he hold that if take as a  remainder in case of a limitation of legal estate it be clear void for the  freehold will be in abeyance for year between the death of the son of I b and  the birth of the son of Joseph but he say the reason of that rule fail in the  case of trust and be of oh pinion that the first estate in the trustee pre  serve the whole trust and therefore whether it be to be consider as a  executory devise or contingent remainder of a trust that it be good and that  the plaintiff be entitle to a moiety this resolution come up to the present in  all its point as to the three point I shall not lie much stress upon it and I  own I take it to be clear otherwise when mention at the bar but on  consideration I think there be more to be say in support thereof than I be at  first aware of the objection be that the particular estate and remainder must  be create at one and the same time as make part of the same atkins estate and  this be undoubted the general rule but it be equal a rule at law that in case  where a estate be limit to the ancestor for life and afterward to the heir  male of his body that the estate be connect and make a estate tail in the  ancestor where it be by the same conveyance so be shelly case and it have also  be hold to connect and make one estate tail where it do not arise by the same  conveyance but by way of result use and so resolve by three judge in the case  of Pybus and MiIford vent a covenant to stand seize of land to the use of the  heir male beget or to be beget on the atkins er p body of his second wife and  die at the time of the deed he have issue by her a son r hale wile and  Rainsford hold that in this case the use of the freehold return or result by  operation of law to the covenantor for life which be conjoin to the estate  limit to the heir male of his body make a estate tail and that this estate for  life arise by operation of law be as strong as if it have be express now if a  estate for life result to the covenantor which be part of the old use and  remain in he may unite and connect with the limitation in tail in the  conveyance why may not the result trust of the freehold to support contingent  remainder of a trust do the same though not create together with it there do  not seem to I to be any great objection to the one than the other my Lord  chief justice hale expression in that case be direct applicable that this be  plain accord to the intention of the party and if we can by any mean support  it we ought to do it as good expositor but however as I say before I will not  be understand to give any positive opinion but it deserve to be better  consider by reason of it be analogy to the case of Pybus and MiIford another  objection take for the plaintiff be that it be impossible to frame such a  express limitation as will support these contingent remainder if this be true  it will be very material it be so as to some but not to all for as to the son  of John Hopkins to be bear hereafter the limitation when the conveyance be to  be make may be support so as to the son of the body of such daughter as be  live at the testator death for I make a great distinction between that  limitation and the limitation to the son of afterborn daughter as to John  hopkins afterborn son it may be limit to trustee and their heir till he have a  son bear and so after his death till Sarah have a son bear and to any other of  the daughter that be in be at the testator death but it have be object further  that this be a new invent limitation to support contingent remainder and that  it be never yet carry further than during the life of tenant for life of the  land or birth of a posthumous son and that to be sure be the common case of  settlement but there have be other limitation and it be not in my opinion  material to restrain it to the life of tenant for life of the land provide it  be restrain to the life of a person in be atkins it have be also object that  all such trustee on such limitation have hither to be restrain to receive the  profit for the benefit of the tenant for life but this will be to create a new  trust for the benefit of the heir at law but this be no more than the common  case of a result trust and it be immaterial whether it be express or imply for  if it be imply by the will it must be express in the conveyance and so it be  allow in the case of Carrick v errington wms Rep Edward errington have make  two settlement of his estate one by fine in the lifetime of his ancestor which  if at all can only operate by estoppel he afterward make another settlement to  trustee to the use of himself for life c remainder c and by a conveyance  execute another day they to who the fee be limit execute a declaration of  trust for Thomas errington for life without impeachment of waste remainder to  trustee to preserve contingent remainder during the life of Thomas errington  in the conveyance be unnecessary make trustee to preserve contingent remainder  it be a trust estate Edward errington die without issue and the whole legal  estate be admit to be in the trustee in the second deed they be only trustee  of the beneficial interest and Thomas who be to take the first estate in the  trust be a papist and disable by the statute to take any beneficial interest  and it be insist that by the statute both the trust and legal estate be void  and therefore the estate to go over by that conveyance to the next  remainderman who shall be a protestant and capable of take first question  whether the deed be obtain by fraud second question whether the legal estate  in the trustee who be only trustee under the first deed be void because this  remainderman be a papist and incapable of take Lord king and afterward the  house of lord hold that the trust be not only to receive rent c but also to  preserve contingent remainder and possible a person capable of take may come  in be that that be a further trust which the statute do not make void it have  indeed avoid that for life but as there be another trust upon the legal estate  which may by possibility be capable of be enjoy the atkins er p estate shall  remain in the trustee to support the contingent remainder and as to the profit  in the mean time for the remainderman can not take they nor the trustee they  be only mere instrument the heir at law shall have they till some person come  in be capable of take under the contingent remainder this therefore be a very  clear authority that there may be a result trust under a trust to support  contingent remainder for the heir at law in the same manner as under a  executory devise indeed it be insist in that case that the estate shall in the  mean time go over but the court hold otherwise for then it will have vest by  purchase and can never have come back again as to the devise of the personal  estate if I be right in what I have say with regard to the real estate it will  hold strong as to the personal that it be a clear executory trust and fall  within the reason of the case of Papillon v voice which be a strong authority  on that head p W S c the consequence of the whole be that the present  plaintiff can have such a conveyance as he pray by his bill nor the surplus of  the profit during the life of William but it remain to be consider whether he  can have any other relief I think no conveyance ought yet to be make of this  estate but it must remain in the hand of the trustee to see whether John  Hopkins or any of his daughter will have a son that shall attain the age of  for so long there be trust to be preserve and no beneficiary and trust till  then be to come into possession if a conveyance be to be now direct it will be  proper to consider what estate ought to be limit to the plaintiff but as I  think this be not necessary the bill must be dismiss but without prejudice as  to the plaintiff apply to the court under the former decree for a settlement  to be make of the trust estate accord to the reservation in that decree Reg  lib a fol atkins er p