atkins case wigg v wigg July the d see in re Kirk Ch d S c cite Ves e W devise  land to his second son Thomas upon condition that Thomas or his heir shall pay  to his grandchild the child of the say Thomas pound to be equal divide among  they and on default of payment a clause of entry and distress Thomas die in  the testator lifetime the son of the old son of the testator enter on the land  as heir at law and sell they the legacy to the child of Thomas the testator  second son be a continue charge on the land in the hand of the purchaser and  they be entitle to be satisfy for the same with interest so hill v Whirley  post vol oak v heath Ves l Edward Wigg by will date the that of November  devise the land name in the plead to his second son Thomas upon condition that  the say Thomas or his heir shall pay and satisfy to his six grandchild the  child of the say Thomas the sum of pound to be equal divide among they and in  default of pay mean of all or part there be a clause of entry and distress  Thomas the devisee die in the life of the testator the son of the old son of  the testator enter on the land as heir at law and sell the land to a purchaser  for a valuable consideration the question be whether this be a continue charge  on the land in the hand of the purchaser Mr brown and Mr Noel who be counsel  for the defendant the heir at law of the testator insist that this be only a  personal condition on Thomas the devisee atkins er p and his heir there be no  word in the will to give a legacy to his child otherwise than depend on such  personal condition and that where a person claim under a will but claim  nothing except under a estate give by that will to another person if such  estate do never arise as here it never do nothing intend to be annex to it can  survive that this be c two estate give upon express term of condition and not  within the rule of be construe a conditional limitation as not be to be  perform by he who can receive a benefit from the nonperformance and that as it  be not limit over it ought to be construe strict as be to disinherit a heir at  law and that the beneficial interest can be separate from the condition but  they must both stand and fall together and rely principal on the case in dyer  report a man have no issue devise certain tenement in London to two of his  friend in fee to hold in common upon condition that they and their heir shall  pay a annual rend of pound S d out of the say tenement at four quarter day to  tile wife of the devisor during her life and that if the rend shall be in  arrear by the space of six week after any of the day of payment and lawful  demand that it shall be lawful for his wife to distrain upon the tenement the  rend be in arrear and no demand make upon the tenement by the wife and for  that cause the heir of the devisor enter and the question upon a special  verdict in ejectment be if his entry be lawful or whether the penalty of the  express condition annex to the estate of the devisees be qualify and  altogether destroy by the penalty of the distress and by that mean a  limitation of payment of the rend to the wife and the heir to take no  advantage of the breach of the condition the majority of the judge clear of  opinion that the entry of the heir be lawful and that both the penalty that be  to say the condition and reentry and the distress give to the wife for  nonpayment be good remedy and surety for the firm payment of the rend to the  wife accord to the intent of her husband atkins Lord chancellor I think the  plaintiff have a strong case both for their legacy and interest there be three  question first if the plaintiff have any continue charge on the land second if  they be proper to come into this court three if there be sufficient notice to  affect the purchaser the two first depend on the will and a great deal arise  from the nature of the disposition in favour of the plaintiff it manifest  appear that the testator intend not only to make a provision for Thomas and  his heir bait also to make a provision for the six child who be then in be and  it will be very unfortunate if not only Thomas heir shall lose the benefit  intend but the six child also lose their small provision by the act of God and  this be such a construction as the court never will make but when necessitate  to do it but on the contrary the present be a case so circumstance as will  induce a court of law as well as equity to man as strong a construction as  possible to support such a charge the defendant insist that this be only a  condition annex to the estate of Thomas and his estate not take effect be void  but this be not a mere condition but a conditional limitation there be a  express limitation over to the legatee in case of nonpayment who be to enter  and hold in the nature of tenant by elegit emes v Hancock post vol Sherman v  Collins post vol and there be many nice distinction on these condition arise  by will a devise land to b on condition to pay c a sum of money and no clause  of entry this be no charge on the estate to give the legatee of the money a  lie on the land but the heir at law shall enter and take advantage of the  breach of the condition hill sheep t and yet in this court he shall be  consider only as a trustee for the legatee Avelin v ware Ves Hodgson v Rawson  ibidem say vide Underwood v swain Charles Rep but then the question will be as  Thomas die in the testator lifetime and the estate descend to the heir at law  if the charge continue on the land I think it be the same thing whoever enter  it be to be only till payment of the legacy and the heir at law may in this  court redeem they but the court will not put the legatee to such a circuity  but permit they to bring a bill to have the land sell and the money raise this  have be compare to a defective surrender of a copyhold pursuant to a will but  here it be different for there the will be atkins void but sure a man may by  will make a equitable as well as a legal charge on his estate and this court  will maintain it against the heir at law and therefore the child be entitle as  to the second question whether the remedy be proper a this court it be  consequential from what have be lie down before to prevent circuity as to the  three question of notice to the purchaser it appear he have notice for though  he have no notice before he pay his money yet he have notice before the  execution of the conveyance and it be all but one transaction see Tourville v  naish p W I do therefore declare that the plaintiff be entitle to the sum of  pound be one moiety of the sum of pound charge by the testator will on his  estate with interest for the same to be raise out of the estate and decree let  a account be take of what be due to the plaintiff for the pound with interest  for their respective share from the time the plaintiff whether Sarah and  Edward Wigg attain their age of and in case the defendant shall not pay unto  the plaintiff what shall be so find due then I direct the estate or a  sufficient part thereof to be sell and out of the money arise by such sale the  plaintiff to be pay what the master shall certify to be due and the residue  atkins er p of the money arise by such sale to be pay to the purchaser but  this without prejudice to any remedy he may have against the defendant the  heir at law to be indemnified under the covenant in the purchase deed