burst v the earl OF Winchelsea a appointment by will under a settlement  operate as a common devise and the appointee in feesimple if heiratlaw be in  by descent and not by purchase S C burr ld ken c this be a case state from  chancery for the opinion of the court of king Beneb and appear to be  this Thomas Herbert by will duly execute devise to his wife Elizabeth all his  land c in feesimple Elizabeth on his death marry a second husband but previous  to suebsecond marriage settle the say estate to use of herself for life then  to Thomas Herbert her own son by the first marriage for his life and so on to  his issue in strict settlement then in remainder to such person or person as  she shall by deed or will notwithstanding any coverture appoint after the  Blackstone second marriage she make a will wherein she devise all her estate  to say Thomas Herbert charge with several pecuniary legacy and die live her  second husband afterward Thomas Herbert die sail issue and intestate and the  question be whether this estate shall descend to his heir ex part of a father  or of a mother or whether the remainder in fee vest in he by descent from  Elizabeth his mother in which case it will go to the maternal heir or whether  it vest by the devise operate as a appointment under the settlement in which  case Thomas Herbert will be a purchaser and the land will descend to the  paternal heir the court after hear two argument declare they shall certify  that it descend to the maternal heir of Thomas Herbert it be a know rule d  that a common devise in feesimple to a heiratlaw give he no estate at all he  be adjudge in by descent and it have also be determine in the case of the duke  of Marlborough and Lord Godolphin e in chancery that a appointment by will be  subject to the same rule as a common devise f e where the argument be state at  length and the will and deed be insert d see Allen v Heber ante and case there  cite and hark   light b n Blackstone e Ves S see also Southby v Stonehouse d  Fearne c r m that ed f S p Bashpooles she Leon Mr Sugden in his treatise on  power p rd ed observe that this be a very extraordinary decision it may be  right to hold that the instrument shall operate as a proper will as to the  word and general effect of it but upon what solid principle a man can be hold  to take that by descent which never vest or have a chance of vest in his  ancestor it be not easy to conceive we may ask with ld CJ will will any one  say that any thing can descend to the heir that do not vest in the ancestor  will the ground of the determination be quite foreign to the question the  principle of the decision can even be support by any plausible fiction nor do  policy require the adoption of it for in the general run of case it must be  whole immaterial whether the appointee take by descent or purchase it shall be  observe that in the case allude to the power be reserve to the person who make  the settlement and who be at that time seize in fee it may not therefore be  deem a general authority that in every case of a beneficial power the heir of  the donee be the appointee take by descent although the donee himself never  have any interest in the estate nor indeed be it acquiesce in as a authority  upon the point it profess to decide for the decree of ld king Henley in  conformity to the judgement of king b be appeal from to d p and the appeal be  afterward compromise ld ken burr see Langley v Sneyd Brod b