Barnardiston GRIFFYN and GRIFFYN march in Benjamin Griffin make his will  wherein be the word follow as for the worldly good and estate which the Lord  have gracious entrust I withal I give and dispose thereof as follow he then  give to his son Giles Griffin a certain parcel of land and to his son Benjamin  another parcel of land when he shall obtain the age of twentyone and then come  the word follow I give to my three son John William and Samuel all that  message or dwell house barn stable and outhouse with all the land thereunto  belong lie in the liberty of winish in the parish of burst and now in the  occupation of Thomas Burrott be pound a year after their mother decease to be  equal divide among they or the sum of apiece to be pay they as they shallcome  to the age of twentyone year each which my executor shall see most convenient  item I give to my son Jacob the dwellinghouse with the appurtenance there unto  belong call the king head in Wockingham and now in the occupation of George  Maynard and Thomas Cotterale after the decease of his mother to he and his  heir for ever or the sum of pound as my executor shall think fit to pay it he  at the age of twentyone year item I give to my son Nathaniel my own  dwellinghouse and the dwellinghouse adjoin and now in the occupation of  Elizabeth ware which house be in the town of Wockingham aforesaid with cc all  their appurtenance to he and his heir for ever or the sum of pound to be pay  he by my executor at the age of twentyone year item I give to my daughter mary  the sum of pound foe be pay her at the age of twentyone year Barnardiston er p  item I give to my two kinsman John and Samuel ware pound apiece to be pay they  at the age of twentyone year each and my Barnardiston will be that if any of  the legatee to who any of the within mention legacy be bequeathe happen to die  before they come of age or if after they be of age and have not otherwise  dispose of their legacy or legacy that then the legacy therein bequeathe they  shall descend unto and be equal divide among the survivor my two kinsman John  and Samuel ware only except together with the legacy of pound a year which be  to be and remain as the arefirst give except also that if all my child happen  to die without heir not have receive their legacy then my will be that all the  estate in house and land herein bequeathe but not the money shall after my  wife be decease come to and be equal divide among the child of my sister ware  be to they and their heir for ever and all the rest and residue of my estate  good and chattel not herein before bequeathe after my debt and funeral expense  discharge I give and bequeathe unto my love wife whether Griffin who I make  sole executrix in the same year Benjamin die at the time of his death he leave  whether his widow and seven son Giles Benjamin John William Samuel Jacob and  Nathaniel and one daughter name mary John William and Samuel die in the  lifetime of whether unmarried and under the age of twentyone mary intermarry  with Richard palmer and in they both die in the lifetime of whether leave  three child Richard Robert and mary after this whether make her will and  thereby give all and every her message land tenement and hereditament which be  then in the tenure or occupation of Henry more and situate in the parish of  burst in the county of wilts and Berks or one of they to Nathaniel and his  heir pay thereout unto his brother and sister such money as Benjamin Griffin  her late husband by his will direct to be pay they out of the premise and also  one shilling more to each of they this estate which be devise by the will of  whether to Nathaniel be the Barnardiston very same estate which be comprehend  in the devise to John William and Samuel by the will of Benjamin and this  estate whether enter upon on the death of Benjamin and continue in possession  of it to the time of her death on the death of whether Giles enter upon the  possession of those land which be contain in her will as heir at law to  Benjamin the present bill be bring by Nathaniel against Giles and the other  child of Benjamin and their representative pray that Giles may account for the  profit of the estate which be devise you the will of whether to Nathaniel and  that such sum of money may be raise upon it as this estate be charge with by  the will of whether on the hear of this Cause Lord chancellor think it be a  matter of some difficulty and accord direct it to stand for judgement and now  he be please to deliver his opinion on it he say his opinion be that the  plaintiff be well entitle to relief the general question in the present case  be whether the land in the parish of burst devise to John William and Samuel  by the will of Benjamin pass to Nathaniel by the will of whether that depend  upon three consideration in the first place whether whether have it in her  power to make a election whether John William and Samuel and their  representative shall take the land or pound in money second whether whether  have the land give to her by the will of Benjamin in case she shall make a  election that they shall have the money and not the land and three whether she  have make a election in a due manner that the representative shall have the  money and not the land with regard to the first of these question his lordship  opinion be that whether have it in her power to make a election that John  William and Samuel shall have the money and not the land this depend upon the  construction of several clause in the will of Benjamin it appear Barnardiston  that he intend by his will to make a entire disposition of his whole estate  both real and personal for this purpose the beginning of the will be as for  the worldly good and estate which the Lord have gracious entrust I withal I  give and dispose thereof as follow in consequence of this he have make  particular devise of certain part of his real estate and have give certain  pecuniary legacy and then come this clause all the rest and residue of my  estate good and chattel not therein before bequeathe after my debt and funeral  expense discharge I give and bequeathe to my love wife whether Griffin who I  make sole executrix whether it be who have a power to determine whether the  three Barnardiston er p son shall have the land which be devise to they or  pound apiece in the room of it the word of that clause for this purpose be I  give to my three son John William and Samuel all that message or dwellinghouse  barn stable and outhouse with all the land thereunto belong lie in the liberty  of winish in the parish of burst and now in the occupation of Thomas Burrott  be pound a year after their mother decease to be equal divide among they or  the sum of pound apiece to be pay they as they shall come to the age of  twentyone year each which my executor shall see most convenient this make way  for the second question whether whether have the land give to her by the will  of Benjamin in case she shall make a election that they shall have the money  and not the land and as to that his lordship opinion be that she have the  clause that give her this be the residuary clause at the end of the will it  have be object that this clause will not have that effect by reason that the  word estate when couple with good and chattel convey only personal estate and  it be indeed true that in case of this sort the word estate have be construe  to extend to personal estate only but that rule only hold where there be not  other clause in the will which show that the word estate ought to receive  another construction and in the present case there be such word the beginning  of the will as have be say show a intention in Benjamin Barnardiston to  dispose of his whole estate there be subsequent part of his will wherein he  dispose both of real and personal estate and therefore the residuary clause  shall be applicable to both this be agreeable to the reason of the court in  Mod and this argument be strengthen by a observation which have be make at the  bar that if whether be not to have the residue of the real estate as well as  the residuum of the personal it will have be absurd in the testator to have  give his three son either the land or the money which his executrix shall see  most convenient when undoubted in that case she will have think it most  convenient that they shall at all event have have the land and not the money  but then another objection have be make arise from the clause which direct  that there shall be a survivorship it have be say that the word legacy will  include a devise of land as well as a bequest of personal estate that the will  direct that in case any of the legatee die their legacy shall go to the  survivor and that the three son do die without issue in the lifetime of  whether so that it have be urge that she never can have the benefit either of  the land or the money which be give to those three son and consequent that the  survivor be entitle and it be indeed true that the word legacy will include a  devise of real estate as well as a bequest of personal but yet his lordship  opinion be that whether be well entitle to the land in the present case the  word S of the clause of survivorship be and my will be that if any of the  legatee to who any of the within mention legacy be bequeathe happen to die  before they come of age or if after they be of age and have not otherwise  dispose of their legacy or legacy that then the legacy therein bequeathe they  shall descend unto and be equal divide among the survivor my two kinsman John  and Samuel ware only except together with the legacy of pound a year which be  to be and remain as they be first give except also that if all my child happen  to die without heir not have receive their legacy then my Barnardiston will be  that all the estate in house and land herein bequeathe but not the money shall  after my wife be decease come to and be equal divide among the child of my  sister ware be to they and their heir for ever by this clause there be nothing  direct to survive but what do original vest in the first taker and in the  present case neither the land nor the pound apiece do vest in the three son  they all of they die before the time that their respective interest be to vest  in they but then a objection have be make on the part of the child of mrs ware  and it have be say that they be entitle to take before whether can have any  thing there be two answer which may be give to this objection in the first  place nothing be give to the child of mrs ware but the real estate so that  whether must have make her election that the three son shall take the land and  not the money in order that the child of mrs ware shall have have any benefit  of this part of the devise relate to the three son but in fact whether have  show her election direct to the contrary another answer to this objection be  that the child of mrs ware be not to take till all the child of Benjamin die  without issue so that it be impossible that they can have any claim to this  estate at present it have be say indeed that as there be more child  Barnardiston er p of Benjamin than two there can be no such cross remainder  and it be indeed true that cross remainder by implication can take effect  where there be more child than two but that rule be never understand where  cross remainder be limit by express word and that that rule be so to be  understand appear by croak and Ven the remain point to be consider be whether  whether have duly make her election that the representative of the three son  shall have pound apiece and not the land and his lordship be of opinion that  she have this election be make by her will and her will be to his effect she  thereby give all and every her message land tenement and hereditament which be  then in the tenure of or occupation of Henry more and situate Barnardiston in  the parish of burst in the county of wilts and Berks or one of they to  Nathaniel and his heir pay thereout unto his brother and sister such money as  the say Benjamin Griffin her late husband by his will direct to be pay to they  out of the say premise and also one shilling more to each of they it have be  object that whether can not proper execute this power of election by her will  but his lordship opinion be that she may there be nothing in the will of  Benjamin that do restrain her from do it by will but then it have be say that  whether have give this estate to Nathaniel and his heir pay thereout unto his  brother and sister such money as the say Benjamin Griffin her late husband by  his late will direct to be pay to they out of the say premise and it have be  urge that Benjamin by his will by no mean direct that the land shall be charge  with any sum of money at all but notwithstanding this objection his lordship  opinion be that the plaintiff be well entitle to this estate he say there be  some colour for her express herself in that manner because even under the will  of Benjamin a court of equity will have consider the land as a security for  the money and so his lordship be please to decree accord