case Whitechurch against Whitechurch before the lord commissioner Raymond and  Gilbert the mortgagee have a term for year and afterward take another term of  the same land for year in the name of a three person to commence after the  determination of the first term in trust for himself and afterward he purchase  the feesimple in his own name and then he devise the say land to e g for  modern report er p life remainder in tail c this will be void so as to pass  the land because not attest by three witness but it be insist that it be good  to pass the term of year as a term in gross and separate from the inheritance  but decree that it be a term which attend the inheritance by implication of  law for it be not express devise for that purpose and there be no apparent  intention that the testator design to pass it as a separate interest S c Rep  Eq S c Peer wms S c Eq ab S c stram one Whitechurch the ancestor of the  plaintiff have a mortgage for five hundred year of the land now in question  and take another term for two thousand year of the same land to commence after  the expiration or determination of the first term and to avoid a merger  thereof he get it convey to another person in trust for the mortgagee and  afterward he purchase the inheritance in his own name and it be convey to he  accord so that he have the legal estate of that term of five hundred year  which stand unmerged by reason of the intermediate term together with the  inheritance in himself modern report afterward by will he devise the say land  to the defendant Whitechurch for life remainder to his first and every other  son and son in tail male and make t S his executor and die now this will be  not execute accord to the statute for though it be all of the testator  handwriting and sign by he yet it be not attest by three witness as require by  the statute but the executor have assent to the legacy the defendant be as he  insist possess of the legal estate of this term of five hundred year however  the will be not good to pass the inheritance the plaintiff as heir at law to  the testator exhibit his bill against the devisee and against the executor and  against the trustee of the term of two thousand year to compel they to assign  both the say term to a three person in trust to attend and protect the  inheritance for he that be the only use of such term for year as he insist it  be argue for the defendant that the principal point to be consider in this  case be what estate the testator have in he at the time be make this will and  to judge right of that matter some consideration must he have both of the  principle of law and equity now a term attend on the inheritance be in equity  to be consider of no other use than to protect the inheritance though at law  it be a separate interest and if it be only to protect the inheritance then  the testator have no other estate when he make his will but a inheritance  which he have chief in contemplation and intend to pass at that time it be  true if there have be any express declaration of the testator intention in  this will to pass the term exclusive of the inheritance there it may pass but  it plain appear he intend only to pass the inheritance and there be nothing in  the will which necessary imply a separate devise of this term it be say that  where a man be seize of a inheritance and have a unmerged term in notion of  law and he devise the inheritance the devisee may in this court compel the  executor to convey the land to a trustee to attend and protect the inheritance  because the term be in the executor upon that trust only and it be very wrong  to affirm that when the inheritance do not pass that the heir at law can  compel such executor to assign the term it be resolve in the case of the  creditor of the earl of Pembroke by simplecontract that they shall be pay out  of a unmerged term he have in he because such term be a chattel modern report  liable to their demand but if the term have be in a trustee for the earl it  have be otherwise so in the principal case though the will be not sufficient  to pass the inheritance because it want that requisite which the statute  direct yet it be sufficient to pass this term to the defendant who have the  legal estate therein this court will not interpose and take it from he in  favour of the heir who be a volunteer for it be a rule in equity never to  interpose in favour of one volunteer to the prejudice of another but to let he  who have the law on his side take advantage thereof especial where the  interest of a purchaser for a valuable consideration do not interpose so that  upon the whole it be insist that this unmerged term in the same person be to  all intent as a term in gross and shall pass by this will as a chattel  interest Gilbert baron be of opinion that this be a term attend the  inheritance and modern report er p to protect the same from intermediate  encumbrance and that a unmerged term in the same person be in he in nature of  a trustee to attend the inheritance and that it will be very dangerous to all  the inheritance in England if unmerged term shall be take to be term in gross  in the owner of the inheritance and pass as such now in the principal case if  this shall be construe as a term in gross then it be such a chattel interest  as may pass by this will though all the solemnities require by the statute be  not observe but if it be a term annex unto and attend the inheritance it can  pass by this will in any other manner than the inheritance will pass now it  have be allow at the bar that the term for two thousand year be annex to the  inheritance but the term for five hundred year be not but no reason be give  why there shall be such a difference between these two term that one shall and  the other shall not attend the inheritance and certain it can never be say  with any colour of reason that where a mortgagee of a term of year purchase  the inheritance that such term when in himself and unmerged shall go and  descend in another course different from the inheritance for it be the  constant and uniform construction in this court that such a term shall be  annex unto and protect the inheritance and attend the same and it will be a  dangerous construction in equity to make the inheritance and the term separate  and distinct estate in one person modern report Raymond the other commissioner  differ a little he be of opinion that where the testator express devise such a  term or where it come to a executor by implication as a chattel interest  videlicet by a devise of all his chattel or where it vest in a administrator  general without make any will in such case the heir at law will be proper to  apply to this court to have the term assign to another to attend and protect  the inheritance but that since it be agree on all hand that this term passes  at law it be a question whether this court can take it from he to who it be  devise in favour of the heir at law who be a volunteer as well as the devisee  it be true where a term be express limit to attend the inheritance there  though the testator likewise express devise it to another it will not pass but  where it attend the inheritance only by construction or operation of law or in  a equitable notion as a term buy in and assign by creditor or term raise for  child portion or for other particular purpose there if the testator express  devise such term they will pass but where a man bath a term for year which by  intendment of law only attend the inheritance certain he have a power to sever  such a term from the inheritance and if he shall assign it to one man and  mortgage the inheritance to another in such case the term shall not attend the  inheritance but it become a term in gross and why shall not a man have the  like power to do the same thing by will if he think fit but there be this far  to be consider in the principal case that as in this will there be no apparent  intention that the testator design to pass this term as a separate interest  from the inheritance though there be sufficient word to pass it in general  then whether such general word shall after the death of the testator sever  this term from the inheritance which attend and protect it in notion of equity  before such devise be make but this point be not debate for it be decree that  the term do not pass by this devise which plain appear to be of the  inheritance only without any intent to pass the one exclusive of the other  therefore the court be clear in opinion that the term shall not be sever from  the inheritance and pass to the devisee by the general word of this will  though there be sufficient word to pass it if it have be a term in gross and  that the executor of this will modern report be a trustee for the heir at law  and his assent to the legacy be of no effect but that the term be still in he  to perform the trust which he be oblige to execute then another question be  make and strong insist on by the attorneygeneral videlicet that the devisee be  a infant the decree shall not be final on he but that be may have leave to  show cause against it within six month a see mallack v Galton Peer wms a after  he come of age modern report er p but the court be clear in opinion that the  decree shall be final for that in case of trust infant be always bind by  decree of this court and so they be where the will of the ancestor be contest  and it be either set aside or confirm in equity after trial of a issue  devisavit well non or where it be otherwise set aside without a trial at law  and there be scarce any case where a infant have time to show cause against a  decree but where it be necessary for he to join in a conveyance in order to  complete the estate and where such conveyance be of the inheritance as in  decree of foreclosure of mortgagors c b see booth v rich vern cook v parson  vern brook v Rereford Peer wms Gregory v Molesworth atk b