case chapman versus BLISSETT Nov a devise his freehold copyhold and leasehold  all his real and personal estate not before devise to three trustee their heir  c in trust to pay his son b a annuity and if he shall have any child or child  the residue of the rend during b s life for the education and benefit of such  child or child and after b s decease a moiety of the trust estate to such  child and child as he shall leave their heir c the other moiety to the child  and child of his grandson c and every other child and child of his daughter S  their heir c and if b die without issue the first moiety to c and other child  and child of S and their heir c and direct a annual payment to such wife as b  shall marry the testator die b marry and have issue a son and daughter and die  afterward c marry and have issue a daughter and die the limitation to the  daughter of c be well support by case tempt Talbot er p the estate in the  trustee or if not be good as a executory devise and the profit c shall go to  the child of b Joseph Blissett devise all his freehold copyhold and leasehold  and all his real and personal estate not therein before devise to three  trustee their heir executor and assign in trust to pay his son Isaac Blissett  pound quarterly and if he marry with consent then double the sum and if he  shall have any child or child he give the rest and residue of the yearly rend  and profit of his say trustestate over and above the say yearly payment to be  apply during the life of the say son for the education and benefit of such  child or child and then he go on in these word videlicet after my son decease  I give one moiety of the say trustestate case tempt Talbot to such child and  child of my say son as he shall leave their respective heir executor and  assign and to the survivor and the other moiety I give to the child and child  of my grandson Joseph Dickenson and every other child and child of my daughter  their heir and assign and the survivor of they then in case Isaac die without  issue the first moiety to Joseph Dickenson and other child and child of Sarah  and their heir c then by another clause he appoint pound per and as a jointure  to any wife his son Isaac shall marry in case he marry with consent and give  to his say grandson Joseph Dickenson pound per and for his maintenance until  his age of fifteen and then pound to put he out apprentice soon after the  testator die in the year Isaac Blissett the testator son bring his bill for a  discovery and it be decree inter alian by Lord Harcourt that the surplus of  the profit of the testator real estate over and above the several payment  direct by the will and the produce of the personal estate shall be improve for  the benefit of such child or child as the say Isaac shall have and that after  Isaac death and upon his have a child all party interest shall apply to the  court soon after Isaac marry with consent and have issue a son and daughter  apply to the court for far direction whereupon it be decree by the Lord Cowper  that the produce of the surplus of the testator estate to the time that Isaac  have a child shall go augmentation of the say surplus but that the produce of  such surplus from the birth of Isaac first child shall be pay to he for the  maintenance of his child during his life and that at his death the estate  shall go accord to the limitation in the testator will Isaac Blissett continue  accord to receive the surplus profit until his death which be upon the that of  October leave a son and two daughter the now defendant about two year after  Isaac death Joseph Dickenson marry and have issue the plaintiff his only  daughter and die soon after case tempt Talbot this cause be first hear at the  bolls where it be decree for the plaintiff and that the produce of the surplus  of the testator real and personal estate incur after his death and therefore  Isaac have a child tear shall not go to such child but shall go in  augmentation of the residuum of the testator estate and now come on to be  reheard two question be make first whether the child of Joseph Dickenson take  by way of executory devise or contingent remainder for if they take by the  latter then the plaintiff can never take she be bear three year after Isaac  the particular tenant death the second question be what shall become of the  surplus of the real and personal estate of the testator from his death until  the birth of Isaac first child whether it shall go to the child of Isaac or  whether it shall go to the augment the residuum Mr attorney general Mr Verney  and Mr fazakerley argue for the defendant that the rule of trust vest be the  same as those of estate limit to use at law and that no rule be better know  than that the remainder must vest eastern instant the particular estate  determine that the danger of perpetuity be equal in trust and legal estate and  that executory devise be no more to to favour here than at law that where  nothing go to the heir at law as undisposed of until the contingency happen  upon which the devisees interest be to arise then it be a contingent remainder  that here be no descent to the heir in the mean time the whole be dispose of  during the life of Isaac and though part of the profit be to be lie out during  his life for the benefit and education of his child and there be child tear  before his death that do only vest their interest in they in their father  lifetime and there be a complete disposition of the profit during the life of  Isaac make it a freehold of the trust in be as to the case tempt Talbot whole  trust videlicet part to himself and part to his child beside no more be  execute here in the trustee than be case tempt Talbot er p sufficient to serve  the purpose specify during the life of Isaac and both the trust estate and  interest determine with his life for the trustee can have a great estate by  implication than what the express word give they unless the purpose direct  necessary require it the court never extend the construction against the vest  of use now after Isaac death the legal estate be devise part to his child and  part to the child of Joseph Dickenson and be devise by word de present time  which be only proper for a remainder and to make a use execute for whenever  the devise be in word de present time and the testator intend a present devise  no fact can alter it and if it can take effect as such it shall rather be void  than be construe a future devise the consequence be no ingredient in the  construction this appear from the case of scattergood versus edge salk where  it be agree that if the word have teen to a child to be bear it will have be  good by way of executory devise but be to trustee for eleven year and then to  the first son of a in tail who have no son at that time that it be void there  be no person in be capable of take at that time the same determination be in  Goodright and Cornishes case salk in both which case it be impossible to  support the devise but as a future one yet the testator have devise by word de  present time the court will not make a construction in favour of the party not  bear what have be say for the plaintiff that this be not too remote a  contingency because confine to arise within the compass of a life be agree but  the question be whether it be the testator intent to pass it in that manner  and if it be not then it must be a contingent remainder and as such by its not  take effect in due time upon the determination of the estate of freehold in  Isaac be void and can never arise Mr solicitor general reply for the plaintiff  that although the devise be in word de present time case tempt Talbot yet  consider the whole frame of the will it be evident that the testator intent be  to extend it to the child bear thereafter the word be use promiscuous and make  no difference between the child already bear and those to be bear and in  scattergood and edge case there be nothing to show the intent to be to take in  the child unborn whereas the clause in the will whereby upon the death of  Joseph and his daughter without child he give their moiety to Isaac child show  plain that he must mean child to be bear since he know that Joseph have no  child at that time and that he by another clause provide a particular  maintenance for he until his age of fifteen nor be it more reasonable to  construe this to be a use execute in the trustee only during Isaac life and  then to determine for there be many other purpose in the will to be serve by  they which do not any way depend upon Isaac life as the annuity give to his  wife the direction about put out boy to apprenticeship and other which be  quite distinct from and have no dependency upon Isaac life but can arise no  way but from the trust estate and sure it can never be his intent to make such  a disposition as will be liable so soon to be defeat by the determination of  the trustee estate but rather to continue the use for the benefit of all that  be name which can only be do by the continuance of the trustee interest and  the word be well able to bear that construction it be the most reasonable way  of take his intent Lord chancellor the first question be whether this  limitation to the plaintiff be good or void it have be say that the trust  estate determine upon Isaac death the limitation to josephs child be of a  legal estate and be by word de present time can enure only as a contingent  remainder and consequent the plaintiff can never take because not in be at the  determination of the particular estate by the death of Isaac the whole depend  upon the testator intent as to the continuance of case tempt Talbot the estate  devise to the trustee whether he intend the whole legal estate to continue in  they or whether only for a particular time or purpose if a estate be limit to  a and his heir in trust for b and his heir then it be execute in b and his  heir but where particular thing be to be do by the trustee as in this case the  several payment that be to lie make to the several person it be necessary that  the estate shall remain in they so long at least as those particular purpose  require it Accordingly it have be determine that trustee shall have a fee  without word of limitation where the purpose of the trust require it and the  intention of the testator can otherwise be effectuate and carry into execution  collier case   Willis v Lucas p will ackland v ackland vern shaw v weigh  strange oat lessee of Markham v cook burr black Rep S c Roger v Gibson Ves  fearne count Rem No authority have be cite to warrant the doctrine that in  case of such a general limitation to trustee as the present case be that they  shall have but a particular interest and then that interest to determine such  a case may indeed be frame but be never intend here there be many purpose to  take effect which may endure long than the life of Isaac and the take it in so  con case tempt Talbot er p fine a sense will be make a second construction to  disappoint the testator intent which be to make a entire disposition of the  legal estate to the trustee consider it therefore as a trustestate the  question be whether this limitation to the plaintiff shall enure by way of  executory devise or contingent remainder and I think no objection against its  take place as a executory devise that it be limit by word de present time for  it appear that Joseph be very young at the time of the devise and the testator  provide a maintenance for he until he shall attain to the age of fifteen it be  a proof of his know that Joseph have no child at that time it be entire  improbable that he shall have any in be when he be himself of so tender a age  at the time of the devise so that although the word be in present time they  must be take in a future sense in order to serve his intent which appear  manifest to be that the child of Joseph shall take in its creation therefore  it be executory but then it have be say that when Isaac have a son bear the  remainder vest in he and consequent the limitation to the other become vest  remainder likewise and the remainderman not be in a thing naturan at the time  of Isaac case tempt Talbot death this remainder can never arise but in regard  to trust the rule be not so strict as at law for the whole legal estate be in  the trustee the inconveniency of the freehold be in abeyance if the particular  estate determine before the contingency upon which the remainder depend do  happen be thereby prevent there be always a sufficient tenant to the praecipe  the defect of which be the sole mischief the law provide against and even the  reason be not now so strong as when real action which can be bring against the  tenant of the freehold only be more in use the whole therefore be in the  trustee support the several use that be to arise out of their interest which  continue in they until the birth of the plaintiff whether it be take as a  future limitation or as a contingent remainder of a trust be good either way  it seem therefore from this determination that in case where the legal estate  be devise to and vest in trustee in trust there be no necessity for any  precede particular estate of freehold to support contingent limitation for  that the legal estate in the trustee will be sufficient for the purpose and  consequent in such case it be not necessary that a contingent remainder shall  vest by the time the precede trust limitation expire so Hopkins v Hopkins ante  Ves and atk S c fearne count Rem the next question be what shall become of the  intermediate profit from the time of the testator death until the birth of  Isaac son upon this head and in this very case there have be two different  decree the first by the Lord Harcourt who think those profit shall belong to  the child of Isaac when bear the other by the Lord Cowper who be of opinion  that the child have no right to they but that they shall go in augmentation of  the trustestate I be at a loss how to determine between two as great man as  ever sit here but the whole be open before I I must give my judgement in the  manner which seem to I most reasonable he give in case Isaac shall have any  child the rest and residue of the yearly rend and profit for the education and  benefit of such child now the word rest and residue be word of relation Roger  v Gibson Ves and part of somewhat that go before the precede disposition be of  yearly rend and profit the word rest and residue must be apply to they and not  to the capital which be not give away before indeed have those child never be  bear then they can never take but when they be bear how can I determine that  they shall not take what be express case tempt Talbot give they without any  distinction between profit before and after their birth the word benefit and  education make it plain that they be entitle to they all absolute and entire  and so vary Reg lib a fol the decree at the bolls as to this last only case  tempt Talbot er p