brown case William Robinson appellant edmund hicks respondent that febuary  that February Mews dig twelve xv see do d bean v Halley t r devise to l h for  his natural life and no long provide he take the name of r and after his  decease to such son as he shall have lawful to be beget and for default of  such issue to W and his heir for ever hold that upon the true construction of  the will and to effectuate the manifest general intent of the testator l h  must be construe to take a estate in tail male atkins burr vesey George  Robinson of Bochym in the county of Cornwall Esq decease by his will date the  that of July and attest by three witness give and devise in the brown er p  word follow videlicet I give and devise all my real estate wheresoever to my  trusty friend John hill Thomas lukey and Samson Sandys and their heir to the  use follow videlicet to raise pound towards pay for the presentation of  Weldron and Helstone in the say county of Cornwall and the remainder to be pay  out of my personal estate by my executor hereinafter name and after the pound  be raise then my will be and I bequeathe all my say real estate except my  estate in the parish of Endellion and all my presentation in the say county to  Lancelot Hicks of Plymouth in the county of Devon gentleman for and during the  term of his natural life and no long provide he alter his name and take that  of Robinson and live at my house of Bochym and after his decease to such son  as he shall have lawful to be beget take the name of Robinson and for default  of such issue then I bequeathe the same to my cousin William Robinson rector  of Landewedneck and his heir for ever item my will be and I desire that he the  say William Robinson have liberty to present who he please to any vacancy that  shall happen in any of my presentation during his life and in case any of his  child shall take or be design for holy order then it be my desire that in case  of any vacancy in either of my presentation bind of resignation be take to  such child or child if the vacancy happen before he or they attain such order  and after the same shall be dispose of as aforesaid then I give the perpetuity  of the say presentation to the say Mr Lancelot Hicks in the same manner and to  the same use as I have give my estate and after give several legacy to his  servant and other the testator give and bequeathe all the rest of his good and  chattel together with his estate at Endellion to the say William Robinson and  make he sole executor of his will on the that of September the testator die  without issue leave the say William Robinson the appellant late father his  heir at law and Lancelot Hicks after the testator death take upon he the name  of Robinson but can not live in the testator house at Bochym the same be in  his lifetime and for a considerable time after his death in the possession of  the appellant say father brown in November a bill in chancery be bring by  Elizabeth Robinson the testator widow against the say William Robinson the  heir at law and the say Lancelot Hicks and other to carry into execution  certain article enter into previous to her marriage and to have the benefit  thereof and in Trinity term a cross bill be file by the say Lancelot Hicks to  prove the testator will and carry the trust thereof into execution and that he  as devisee of the real estate may have the benefit of the devise thereof and  have the deed and write relate thereto deliver up to he both these cause be  hear before sir Joseph Jekyll then master of the roll on the that of April  when he be please to declare that by the will of the say George Robinson the  say Lancelot Hicks alias Robinson be entitle to a estate for life in all the  estate of the say George Robinson except the estate of Endellion and the  presentation in the county of Cornwall with remainder to the old and but one  son of the say Lancelot Robinson for his life they perform the condition in  the will and that the remainder will go over to the say William Robinson the  heir at law of the say testator and that the perpetuity be in like manner to  be settle to the use of the say Lancelot Hicks alias Robinson for life with  remainder to his old son for his life with remainder to the say William  Robinson the heir at law mrs Robinson appeal from some part of this decree to  the then Lord chancellor Talbot but the say Lancelot Hicks alias Robinson  acquiesce under the same and on the that of December such appeal be hear when  his lordship be please to vary the say decree as to the particular complain of  but affirm the same as to the interest which the say Lancelot Hicks alias  Robinson take in the testator estate under his will by a declaration in the  very word of the former decree the say Lancelot Hicks have two son videlicet  George his old son who be call by the name of Robinson and die in march a  infant in the lifetime of his father and the respondent his young son in July  Lancelot Hicks die intestate leave the respondent his only survive son then a  infant in march the respondent bring his bill in the court of chancery against  the say William Robinson the appellant father and against the survive trustee  in the testator will for a execution of the trust therein mention and that a  brown er p sufficient part of the testator real estate may be sell to  discharge the debt and encumbrance affect the same and that the residue of the  estate may be convey to the respondent the appellant father put in his answer  to this bill and thereby insist that by the testator will the say George Hicks  otherwise Robinson the elder brother of the respondent be brown tenant for  life in remainder of the testator estate immediate expectant on the estate  devise to Lancelot Hicks otherwise Robinson his father for life and that such  estate be a vest remainder in he the say George Hicks otherwise Robinson and  that no other son of the say Lancelot Hicks otherwise Robinson can under the  testator will take any estate or interest in the land thereby devise and that  on the death of such son he the defendant William Robinson as heir at law of  the testator or by virtue of his say will become seize in fee of the reversion  of the say estate immediate expectant on the estate devise for life to the say  Lancelot Hicks otherwise Robinson and that on his death he the say defendant  William Robinson become seize in possession thereof subject to the charge and  encumbrance thereon on the that of November this cause be beard before the  Lord chancellor Hardwicke when his lordship be please to order that a case  shall be make for the opinion of the judge of the court of king bench upon the  will of the say testator George Robinson and the material fact appear in the  plead in the cause upon the follow question videlicet whether any and what  estate or interest in the premise in question do by virtue of the say will  vest in the say Edmund Robinson and it be order that the say case shall be  state as of a devise of a legal estate to Lancelot Hicks and the several  person to take in remainder after he without regard to any trust and all  further direction be reserve till after the judge shall have give their  opinion some time after pronounce this decree William Robinson die leave the  appellant his old son and heir at law against who the suit be regular revive a  case be accord state for the opinion of the judge of the court of king bench  which be several time argue before they and on the saint December they be  please to certify that they be of opinion that upon the true construction of  the will of the testator George Robinson Lancelot Hicks therein name must by  necessary implication to effectuate the manifest general intent of the  testator be construe to take a estate in tail male he and the heir male of his  body take the name of Robinson notwithstanding the express estate devise to  the say Lancelot Hicks for his life and no long on the that of march the cause  come on to be hear upon this certificate and for further direction on the  equity reserve before the lord commissioner for the custody of the great seal  when their lordship as be usual in such case upon the foundation of the  certificate and without enter into any debate upon the question declare that  the respondent Edmund Hicks otherwise Robinson as son of the say Lancelot  Hicks be entitle to a estate in tail male in the premise in question with such  remainder over as in the will of the say George Robinson decease be mention  and decree that the trustee shall brown convey the say premise to he and the  heir male of his body with such remainder over as aforesaid subject to the  jointure of the testator widow and other the encumbrance on the say premise  and it be refer to the master to settle such conveyance in case the party  shall differ about the same and it be order that the receiver already appoint  shall be continue till further order and that the respondent shall pay to the  defendant and trustee their cost of the suit to be tax by the master the heir  at law apprehend himself aggrieve by this decree so far as it declare the  respondent entitle to a estate in tail appeal and on his behalf it be argue c  York g Perrot that the great difficulty occur in the construction of will be  to form a true judgement where the presume general intent of a testator ought  to prevail and where the legal operation of his word shall take place if the  intention can be collect clear from plain decisive evidence such as have be  receive and allow in court of law and equity by the current of authority in  similar case it must prevail but if on the one hand the presume intention be  obscure and ambiguous not necessary imply in the word and whole inconsistent  with the legal operation and if on the other hand the legal operation produce  a clear uniform sense without brown er p contradiction or absurdity that  construction ought to be prefer which explain the intention of the testator  with the least violence to his word that though this case arise upon the  devise of a trust yet the court of chancery in send it to a court of law judge  that it ought to be govern by the same rule of construction as the devise of a  legal estate and it be submit that the will of George Robinson afford no  strong coercive legal evidence of intent such as must induce a court of law  from the necessity of his meaning to overrule the legal operation of his word  and vest a estate of inheritance in tail male in Lancelot Hicks the father of  the respondent who be not relate to the testator in prejudice to the appellant  father who be certain one principal object of his bounty and his heir at law  it will serve be explain the ground on which the appellant proceed if it be  consider I what estate be devise to Lancelot Hicks the father two what estate  be devise to his son as to the first question the testator have not leave the  possibility of a doubt if his express declaration deserve any weight he devise  all his real estate except his land in Endellion and his presentation in  Cornwall to Lancelot Hicks the father for life and no long enforce his devise  by negative word which have hitherto be allow in all the case adjudge to be  sufficient to prevent any implication by way of enlarge the estate and extend  the duration of it so that the decree of the court of chancery ground upon the  certificate of the court of king bench control not only the legal force of the  word but their meaning in common use and in effect expunge they out of the  will that as all the authority concur against brown enlarge a estate for life  into a estate of inheritance where negative word be add to strengthen the  express devise so likewise they be uniform in not raise a estate tail by  implication in the tenant for life either by way of present estate in  possession or by way of remainder in tail after other limitation unless the  testator have limit express estate of inheritance to some of the son or issue  of the ancestor tenant for life nominati or by description and then devise the  land over to another family in default of issue general of that ancestor but  this be the first case in which it have be hold that the tenant for life take  a estate tail by implication in virtue of the connect word for want of such  issue where the default of issue on which the implication be raise be not  general but relative by force of the word such to a particular antecedent  limitation and where that antecedent limitation be make only to one son of the  tenant for life without any collective description of his heir male or heir of  his body and without any word devise a inheritance to that son that there be  other circumstance in the will from which it be infer that the testator intend  to give a estate of inheritance to Lancelot Hicks the father but they seem too  slight to have any weight in the construction the devise of the advowson to  Lancelot Hicks be just as doubtful as the devise of the testator land the  advowson be give in a subsequent clause in the same manner and to the same use  as he have give his estate the direction to live in his house be a condition  frequent require in a tenant for life and even the direction to take his name  have be say in precedent of authority to be much too weak to support a imply  device of a inheritance and have in fact be impose upon some tenant for life  who can not pretend to argue that any great estate in the land be intend for  they and as to the second question what estate be devise to the son of  Lancelot Hicks if the father take only a estate for life there be no colour to  say that any one can entitle himself as devisee of a estate of inheritance by  word of purchase in the will the devise be make after the death of Lancelot  Hicks to such son as he shall have no express word of limitation be annex to  it to give a inheritance no word on which it can be imply the only doubt arise  on some word which refer clear to a failure of issue whether a general or  limit failure be the question not of the son but of the father hence it follow  that the son intend by the will can only take a estate for life if Lancelot  Hicks have have a son live at the testator death in September the devise will  have take effect immediate as a vest remainder for life as no son be bear at  that time it be a contingent remainder for life but vest on the birth of the  respondent old brother George Hicks in may from that moment the devise be  satisfy and George Hicks die in march the limitation over in favour brown of  William Robinson the testator heir at law the father of the appellant take  place that this construction brown er p be exact agreeable to the decree of  sir Joseph Jekyll pronounce on the that of April and afterward affirm by the  Lord chancellor Talbot on the that of December in the presence of counsel for  Lancelot Hicks who be now hold to have be tenant in tail and who be material  interest to contend for the ownership of the inheritance but be advice to  acquiesce in sir Joseph jekyll opinion and yet at the time of hear the appeal  it be take to be so just and right that no doubt be conceive upon it either by  the counsel or the court it be therefore hope that the decree now appeal from  will be reverse and the respondent bill dismiss but in support of the decree  it be contend c Pratt f Norton that the word son child issue and heir in a  will where no son be in be at the time of the devise be nomina proceeding by  inference and sufficient to create a estate of inheritance and carry the land  not only to the immediate heir or issue but to all that descend from the  devisee that the testator in this case can not have any particular person in  view to take but the issue male of Lancelot Hicks in a collective sense be  clear because at the time of make his will Lancelot Hicks be a bachelor and  therefore to suppose he can mean to give a life estate only to some one son of  Lancelot Hicks not then in be will be a construction equal illiberal and  absurd that this be make still plain by the word which follow I e for default  of such issue for these word explain what kind of a estate as to its  continuance or duration the devisee shall take and be so frequent use to  denote a estate tail that they be become almost technical so that express word  be hardly better to be understand than the implication arise from this phrase  that if the testator mean to give his estate to all the issue male of Lancelot  there be some sense in require all such devisees to bear his name and this be  common from whence this affection to his name in the testator furnish a strong  argument to extend that devise to all the issue male inasmuch as this kind of  vanity be never satisfy with the remembrance of one or two generation but look  forward to the late posterity that the testator intention in this respect seem  more full explain in the clause immediate follow the devise where after desire  that William Robinson shall have liberty to present who he please to any  vacancy which shall happen in any of the testator presentation during his life  and in case any of his child shall be design for holy order to take bind of  resignation to such child or child he express devise the perpetuity of those  very presentation to Lancelot Hicks in the same manner and to the same use as  he have give his estate which manifest show that at least a estate of  inheritance be mean to pass to the son or son of Lancelot Hicks take the name  of Robinson for he never can intend to give a estate for life only to arise at  so remote a period as when there shall be a brown total failure of issue of  William Robinson land without which the word perpetuity can not be satisfy by  any other construction that can be put upon it that in the case of will the  testator be weak council and have not always opportunity of observe the  formality of law and it be a general rule that the intention of the testator  be to govern in the construction of will and that the judge will go as far as  they can to assist and give effect to such intention and therefore as the word  son will in a will signify a estate tail as well as the word issue or child it  be humble insist that the devise in the will of George Robinson must by  consequence and operation of law to manifest the intent of the testator be  construe to create a estate to the respondent and the heir male of his body  after hear counsel on this appeal the judge be direct to give their opinion  upon the follow question videlicet whether any and what estate or interest in  the premise in question be by virtue of the will of the testator George  Robinson vest in Edmund Hicks alias Robinson the respondent and after take  time to consider the Lord chief baron deliver the follow unanimous opinion  videlicet that by the will of the testator George Robinson a estate in tail  male do vest in Lancelot Hicks alias Robinson the father and that a estate in  tail male be vest in Edmund Hicks alias Robinson the son as heir male of the  body of Lancelot Hicks alias Robinson whereupon it be order and adjudge that  the appeal shall be dismiss and the decree therein complain of affirm jour vol  p brown er p