AVELYN v ware march see warren v Rudall king I Betty smith trust l r Eq in re  sander trust l r Eq barn v Jennings l r Eq in re Gibson matthews v Foulsham l  r Eq Edgeworth v Edgeworth l r h l Davies v Davies lt devisee on condition  that the land shall go over to another if he do not give a release in three  month after testator death die in the testator lifetime the devisee over shall  take instead of the heir at law this be a conditional limitation and not a  strict condition see thellusson v Woodford Ves specific legacy of stock et e  contra see supplement p particular sergeant urling devise his real estate to  his brother Goddard urling and his heir on this express condition that within  three month after his decease he shall execute and deliver to his trustee a  general release in full word of all demand which he may claim on his estate or  any part for what cause soever but if his brother shall neglect vesey senior  er p to give such release the say devise to he shall be null and void to all  intent and in such case he devise it to Richard ware and his heir and assign  for ever he give some bequest to his sister and in the end of the will there  be a clause that what be give to Goddard urling and his sister shall be take  in full satisfaction of the claim and demand which they or either of they can  make on any part of his real or personal estate and upon this express  condition that the sister and her husband and the brother within three month  after his decease execute a general release of all manner of action cause of  action debt claim challenge and demand whatsoever in law or in equity against  his trustee or his representative of in to and out of his estate real and  personal Goddard urling the first devisee upon this condition who happen to be  heir at law die in life of the testator see Ves sen for defendant Richard ware  the testator by express word intend nothing shall descend to the heir at law  and the estate never vest in Goddard the question be whether the limitation  over can take effect which will depend on the distinction if it be on a  precedent limitation which by what mean soever be set out of the way the  limitation over may take effect or upon a precede condition or contingency for  then it can unless that condition first happen or exist as in devise of a  estate if a go to Rome that it mean the former appear from the nature of the  devise as well as from general observation of the will and in that case if the  precedent estate determine any other way the limitation over always take  effect as in a limitation for life remainder in tail to the first and every  other son remainder over though the first son never come in be the remainder  take effect suppose a gift to one for life and after his death remainder over  if forfeiture c determine it it go over a gift to a monk and after his death  over it go over immediate so that it be immaterial whether determine on the  event in view of the grantor by death or be void ab beginning nor be the order  of the word of vesey senior give a precedent or subsequent limitation consider  in Jones v Westcomb Prec Ch and Eq ab Lord Harcourt hold the devise overgood  though the first contingency never take effect note Lord chancellor say that  though the child die without issue be not mention in any of the print book the  case be so the same will come in question again in Andrews v Fulham vide will  and burr upon the term June in b r when lee c I deliver the opinion of the  whole court that the limitation over to the sister be good and that the devise  to the infant be ineffectual be out of the case and the law the same whether  the devise immediate precede the limitation over be original void or become so  by nonexistence or nonentity of the person for that since the law allow such a  limitation over it allow the wait for it that it be a executory limitation  which be all on some contingency on the failure of a precede limitation and  none of they take in all the way of fail yet it be the same thing nor be it  necessary the devise to the sister shall take effect immediate and that the  case of Glascock v warren in Comberbatch be distinguishable from that case but  in fonnereau v fonnereau atk your lordship say the record of that case can not  be find and therefore it be of suspicious authority this be the determination  upon the leasehold part of the estate a ejectment be bring in c b on the real  estate between roe v wicket where the opinion of will c I and the rest of the  court except fortescue I who differ but do not hear the argument be that it  may be either a limitation or a condition but the question be whether when a  estate be devise on three contingency the devisee shall have it though none of  they have happen and this in dishersion of a heir at law another contingency  have happen that no child be bear as to which there be no direction in the  will which be casus to let go and the rule be that a heir be not to be  disinherit but by express word or necessary implication so that upon this  ground the devise can not take effect that it be give over on a contingency  not happen and that Andrews v Fulham be a determination upon the leasehold be  distinguishable the plaintiff there have assent to the devise over and  therefore be conclude and that there be a difference of construction between  the leasehold and freehold because of the favour show to a heir at law the  party not be satisfy with this determination upon the freehold by which it be  distinguish out of the two former case another ejectment be bring between  Gulliver v wicket in vide I will b r mich g when lee c I give the opinion of  the whole court that the subsequent devise be to be vesey senior er p consider  as a limitation subsequent vesey senior the first we a precede limitation not  a condition or contingency which whatever way it be lie out of the case the  other take effect a question like this come before your lordship in fonnereau  v fonnereau where the testator limit over in case of issue all die without put  the case of there be no issue at all and though there be no issue it be hold  the subsequent limitation shall take effect in Lord town send v ash atk may  two share in the new river company be settle on a she for year if he so long  live remainder to the child remainder to a b as ash shall appoint remainder  over to use under which the plaintiff claim these share be real estate and  fine be levy of they and though no appointment have be the limitation over be  hold good for the heir at law it be insist that this be a strict condition out  of which Richard ware be interest be to arise and before any breach can happen  the estate must first vest in Goddard urling which will have be in the whole  fee and therefore not like the case where something particular be give before  as in a devise to a monk or to a for life in which it depend on the antecedent  estate and whenever that determine it let we in the remain interest which  arise out of the original devise Lord chancellor on this will the court be  bind to make such a construction as to make good the plain intention of the  testator provide there be word in the will for it or it can be do consistent  with the rule of the court the question will very much turn on this whether  this devise over be to be consider and the contingency on which it be give as  a strict condition or a conditional limitation brown ibidem sir Lloyd Kenyon  say there be many case render impossible to be do and yet the estate shall not  vest for if the former I can have the estate it will be very difficult to  maintain that the second but upon a strict breach or nonperformance if the  condition have be perform or it become impossible by act of God that can be  but if it be a conditional limitation the consideration be different Douglas  and I know no case of a remainder or conditional limitation over of a real  estate whether by way of particular estate so as to leave a proper remainder  or to defeat a absolute the fee before by a conditional limitation it if the  precedent limitation by what be so ever be out of the case the subsequent  limitation take place and I be of opinion this must be so construe if it be a  condition strict it be subsequent because the estate will vest in Goddard  urling and to be defeat by what may happen afterward but that be not the  construction in this case and never be for if here be a revise to a stranger  not the vesey senior heir at law upon a condition subsequent the devise over  can take advantage of the breach for the benefit thereof be not devisable but  must go in privity to the heir at law of the grantor who must enter for the  beach not the devisee though in some case perhaps a court of equity may make  the heir a trustee for the devisee therefore where a estate be devise pay a  sum of money and if not pay over to another it be a conditional limitation to  effectuate the devise not a condition accord to   light but this be strong  because the devise be to the heir at law who be the only person to take the  advantage and if survive the testator must be suppose to be in possession by  the devise must on himself then how can this condition be make effectual  accord to law it will be construe therefore a condition allimitation and it  ought to take effect notwithstanding the word that if he give not such release  it shall be null c if it be be construe as a strict condition what be insist  on for the plaintiff that there trust be a strict breach or forfeiture in fact  agreeable to the word to make the subsequent estate take effect will be the  rule but as it be a conditional limitation it come to the question whether it  be necessary every particular fact shall take place whether it be not to be  construe accord to the sense and intention of the test that if in any event  the first can take place the subsequent shall if so the substance of this be  the intent of the testator that if no such release be execute whereby the  demand against his estate will exist the estate shall go over and I think the  determination of Lord Harcourt and of the court of b r in the first castle  upon the term that it be a good limitation though no child bear consider it  same as if the testator have say that if no issue shall be of such child be in  point but more strong the determination of b r in the last case upon the  freehold the case put of a remainder on a particular estate be admit but it be  say they differ from a conditional limita vesey senior er p cion to introduce  a executory or spring devise after a fee I do not find any authority to  warrant that distinction for Jones v Westcomb Prec Ch be a strong authority  that the construction ought to be the same whether it be on a remainder so  limit on a estate which never take effect or whether it be a contingent  limitation after a fee for in that case it be so in respect of the freehold  notwithstanding the devise for life which be precedent to the limitation in  fee to the child and his heir after which come the limitation to the  subsequent devisees as that fee to the child stand before the limitation over  to the person claim the precedent estate for life do not alter the case  because there be a complete disposition of the fee before the devise over if  the child have be bear see Fearne ex day therefore with all deference to the  contrary opinion of the court of c b Jones v Westcomb be in point concur with  the resolution vesey senior in b b especial the last which have there the  advantage against that single resolution in c b and agree with the opinion  give by I in fonnereau v fonnereau atk Bat this case be strong from he clause  express exclude the sister now heir at law in all event from take any other  benefit than what be give by the will which be a injunction upon her to  release every other claim action c and this be to be recover by action the  testator have also bequeathe some legacy of south sea stock see the supplement  p it be insist they be not specific but general legacy consist only in  quantity and must on a want of asset abate in proportion with pecuniary he use  no word apply it to the stock he then have and if he have none at the time of  make the will the executor must have buy it in pierce v Snaveling atk cite  ante and post d vol b Roland devise two legacy of pound in old south sea  annuity and the residue to his nephew Snaveling make pierce one of the legatee  sole executor the testator at the time of make the will and at his death have  but pound the residuary legatee insist he be not bind to make good the  deficiency but that the stock of which the testator die possess shall be equal  divide the difficulty be whether it be a specific legacy for then this pound  stock alone can be apply and none can be buy sir Joseph Jekyl hold that the  pound shall be equal divide between the two legatee because it be a specific  legacy and nothing more can be add to it and because one will be defeat entire  as in a devise to a and his heir and in another part of the will the same  estate to b and his heir the better opinion be they shall be jointtenants when  it come before your lordship you hold it not a specific devise but that each  shall have stock out of his estate he not give his south sea stock he have at  that time but so much there be a great difference in the civil law where a  thing be give by the name of some but the principal distinction be between a  specific legacy which be a gift of the thing the testator have and a legacy of  a species of thing which be the give only so much of the sort of good the  testator have and can be make good out of his estate by purchase the other can  therefore you direct pound stock shall be buy to enable the executor to make  good both legacy this be in point the only difference be in that case there be  this natural objection if to be consider as a specific legacy videlicet the  absurdity in the testator give the thing he have not but that be not the only  nor the principal argument suppose the testator have sell any part the  executor must have purchase to make it up and the testator may have have this  in view not to tie himself down from sell this stock on the other side not to  let the legatee suffer by have it liable for if it be a specific legacy the  testator sell out will have be a ademption wms Ashton v Ashton Nov p wms be  cite in that case against the opinion your lordship be vesey senior of Lord  Talbot hold it a specific legacy not in quantity only but there appear plain  the intent of the testator be so from the word in the trust to sell as soon as  may be Ashton v Ashton Forr and p W Lord chancellor in this case  notwithstanding pierce v Snaveling these be specific legacy note Ves sen Cas  tempt Talb atk in brown Lord Thurlow say many case be determine contrary to  this and be by Lord Hardwicke himself videlicet purse and Snapling but Lord  Hardwicke seem to have well consider the circumstance and do not mean to lie  down a invariable rule it be true I determine there contrary to the master of  the bolls that they be to be consider as general legacy consist in quantity  only and not to be refer to the stock the testator be possess of it appear he  know all the circumstance of his estate and can not make a mistake in come  vesey senior er p putation nor intend to give pound out of pound but plain  intend to give each legatee pound and therefore it shall be make up out of the  personal estate but I do not thereby determine that every legacy of stock or  annuity must be consider not as specific but general and consist in quantity  only brown see I roper on legacy c it be say the testator have not say in that  case he give so much of his south sea annuity which be a reason rely on in  that determination insist upon at the bar and take notice of by I I will  repeat what I then say by way of caution it be observe that the testator have  not describe the annuity by the word my and do not intend to confine it and  though this observation be treat with little weight and in many case it be too  slight to have weight and I cite a authority in the civil law which have  perhaps too much on the insert that description or word be necessary but that  if it appear by any hint that the testator intend to give out of that it will  confine sort appear it be to be consider as a general legacy and I endeavour  to make use of that which be now endeavour to be make use of and by way of  caution add I do not intend nor lie it down as a invariable rule that in all  case of devise of stock they be to be consider as general legacy but always  accord to the will and the circumstance drown and therefore if there be any  thing show the testator intend to confine it to the stock lie have at the time  by his death it shall be so and will turn it the other way that the intent may  be comply with and for this I agree perfect with the resolution of Ashton v  Ashton Talb consider therefore how the present case differ from pierce v  Snaveling here the testator be possess at the make the will of a sum in south  sea annuity equal to what he give and more and can the court construe he to  intend that his executor shall purchase out of the personal estate in general  it ought to be take that he intend to give it out of that he have and to rely  on the word my in lie too great a stress upon it it be true that in Ashton v  Ashton p wms there be another circumstance attend of absurdity in suppose the  testator mean a circuity vesey senior but it be equal absurd in the present  case to suppose that the testator do not intend to give out of what he possess  though he have to the value and more but that the executor shall purchase but  it be object that suppose the testator have sell out before his death whether  that will have make a ademption of the legacy or whether it shall be make good  out of his general asset fort if specific it will have be a ademption there be  no necessity to determine that but the court have be lose in respect of  ademptions of legacy by a disposition in the testator life and it be so hold  in partridge v partridge Forr that if the testator give part and sell out and  before his death purchase other stock this shall not be a ademption but the  other stock so purchase shall pass by the will which if compare to the case of  land will not be so that depend on the difference between real and personal  estate that the personal acquire at any time before the death of testator will  pass by the will but of land the testator must be seize at the time of make  the will but here the testator have more than to answer it make no alteration  and intend therefore to give the quantity of stock out of that he be possess  of which be a specific legacy which shall not abate in proportion with the  rest Reg lib a fol