case Charles selby Amherst Esq administrator of dame margaret stride his late  wife who be the widow of sir george stride decease plaintiff William Robinson  litton Esq devisee of the will of litton litton Esq decease who be the only  son and heir of the say sir george stride decease george DARNELLY a remainder  man under the will of the say sir george stride decease Francis MASCAL and  james beddingfield mortgagee of the estate in question defendant S c Eq Cas  Abr bro PC at the chancellor house Lord chancellor Mr solicitor general for  the plaintiff sir George stride be seize in fee of the manor of itchingham and  diverse land and hereditament in the county of Sussex of the yearly value of  pound and upward part whereof be subject to two several mortgage make by he to  Francis brook each for a term of one thousand year for secure the principal  sum of pound and interest and other part whereof be subject to another  mortgage make by he to mary Selyard for another term of one thousand year for  secure the principal sum of pound and interest and the say sir George be also  seize of other estate in the county of Worcester and Gloucester and Hereford  subject to other mortgage do by his last will and testament date the saint day  of may devise all his manor message land tenement and hereditament to his only  son Litton Litton and the heir male of his body remainder to his godson stride  Bedingfield for life remainder to his first and other son in tail male upon  condition that the say stride Bedingfield and his issue male shall change his  name of Bedingfield to stride and take the arm of the strodes and in case the  say stride Bedingfield shall refuse or neglect to change his surname from  Bedingfield to stride then the testator will be mosely report that the say  devise shall be void and in such case he give the same to his godson George  Darnelly for life remainder to his first and other son in tail male he and  they change their surname in the same manner as stride Bedingfield be to do  and in case he and his issue shall refuse then the devise to he and they be to  be void and in such case the testator devise the same to his own right heir  the testator sir George stride soon after die and his son Litton become seize  of the mortgage premise in Sussex as tenant in tail subject to the say  mortgage and seize of the reversion in fee as the only son and heir of sir  George stride his father subject to the several intermediate remainder before  mention Litton Litton be also seize of a great estate in feesimple in  possession in the county of Hertford Bedford and London devise to he by the  will of sir William Litton of the value of about pound per annum and by his  will date the that of April give to his mother dame Margaret stride a legacy  of pound and after give several pecuniary legacy to other person the will go  on and my further will and meaning be and I do hereby direct order and appoint  that my executrix hereafter name shall within six month after my decease pay  off and discharge all mortgage and encumbrance lie and charge upon my estate  in Sussex and heretofore charge by my honour father sir George stride knight  decease to wit one mortgage of pound lend by Mr Francis brook and one other  mortgage of pound lend by mrs Selyard to my say father and my will and meaning  be and I do hereby direct and appoint that the say several mortgage lease  shall be keep on foot and upon payment of the say several sum of money due  upon the say mortgage shall be assign by the say mortgagee to my dear and ever  honour mother dame Margaret stride for her sole use and benefit during the  remainder of the several term in the say several mortgage contain and he  further give to his mother a yearly rentcharge of pound for her life to be  issue out of all his manor and land in the county of Hertford and Bedford and  give to his wife Bridget a yearly rentcharge of pound to be issue out of all  his manor and land in the county of Hertford and Bedford for her life and as  for and concern all and every his manor message land tenement and hereditament  which he the say Litton Litton be then seize of in law or equity mosely report  er p or which he have a power to give or charge he do give and this ose of the  same in the manner follow videlicet if his wife shall be with child at the  time of his decease then he give all his say manor c to his cousin William  Robinson Litton who be his mother brother son until such time mosely report as  such child shall be bear and after the birth of such child if such child prove  a son then he devise all his say manor c to his say afterborn son and to the  heir male of his body the remainder to his say cousin William Robinson Litton  and his heir and in case of the birth of such son then he devise a rentcharge  of pound issue and to be pay by his say son out of the say manor and land unto  the say William Robinson Litton and his heir with a power of distress in case  of nonpayment and if the say afterborn child prove a daughter then he give to  such daughter pound to be raise and pay out of the rend and profit of the say  estate at the a e of eighteen year or marriage and if his say wife shall not  be with child at his death then he give all his say manor c to his say cousin  William Robinson Litton and his heir and he order his executrix to pay all his  father just debt and give the residue of his personal estate after his debt  legacy and funeral expense be pay to his say wife Bridget Litton who he  appoint sole executrix of his will and he appoint that all his furniture good  and householdstuff then be in his manorseat at Knebworth shall remain and  continue in his say house after his death for the use and benefit of the say  William Robinson Litton to who he thereby give the same Litton Litton soon  after the make of this will die and his wife Bridget prove the same and  William Robinson Litton who be her guardian during her minority purchase of  the say Bridget the benefit of the residue of Litton Littons personal estate  and agree to pay off all the debt and the wife not be with child William  Robinson Litton enter on all the premise in the county of Hertford Bedford and  London and add the surname Litton to his own and stride Bedingfield who be  entitle to the remainder of the estate in Sussex and of the other land and  premise under the will of sir George stride enter on the same and take the  name and arm of stride and in Michaelmas term exhibit a bill in chancery  against William Robinson Litton lady stride Bridget Litton and the mortgagee  to be let into a redemption of the mortgage premise in Sussex and the cause  come to be hear on the d of February a decree be make by Lord Harcourt that  the mortgagee shall be pay off out of the asset of Litton Litton and upon  payment shall assign over their mortgage to lady stride or her order but if  the say stride shall pay to lady stride the money due on the say mortgage with  interest before a assignment of the say term to her then the say mortgagee be  to assign to stride stride or to such person who he shall appoint but such  assignment be to be subject to such further direction as the court shall think  fit to make when proper party shall be before they mosely report pursuant to  this decree the defendant Robinson Litton pay off the mortgage out of the  asset of Litton Litton and the mortgagee assign to the plaintiff Selby Amherst  by the direction of dame stride then his wife but such assignment be subject  to redemption by stride stride or such other person as shall be entitle to the  inheritance of the premise under the will of sir George stride and to the  further direction of the court and afterward the plaintiff by the appointment  of stride stride and upon pay to he the say mortgage money assign the same to  the defendant Mascal and Bedingfield subject to such direction as in the  decree lady stride die have first make her will and the plaintiff her husband  residuary legatee of her real and personal estate who take out administration  with the will annex and stride stride be dead without issue the reversion of  the mortgage premise by the will of Litton Litton come to William Robinson  Litton in Michaelmas term the plaintiff bring a bill for a redemption of the  say term and in easter term the defendant William Robinson Litton bring a  cross bill to redeem the say mortgage term and both cause be hear the that of  November as to the title of the defendant Darnelly the Lord chancellor direct  a case to be state for the opinion of the judge of b r who be unanimous in  their judgement that his remainder can not take place be on a condition  precedent which never happen stride Bedingfield have take the name and arm of  stride and therefore the defendant William Robinson Litton must take under the  will of Litton Litton and now both cause come to be hear before your lordship  on the equity reserve and the question be whether Litton Litton intend by his  mosely report er p will that his mother shall have only the money secure by  the say mortgage term or the term themselves and we think his intention be  very plain as far as it can take place to give her the say term discharge of  the money by the same will he give her pound and sure if he have design her by  the clause in question only the money secure by the say mortgage he will have  order his executor to pay her so much money and not have take this roundabout  way he direct his executrix to pay off the mortgage in six month after his  decease and the lease be to be keep on foot for what purpose to raise the like  sum for his mother no but to be assign by the mortgagee to his dear mother for  her sole use and benefit for the residue of the term the absolute interest in  the lease when the money be pay off be to be assign and by suffer a recovery  he may have bar the remainderman of their equity of redemption and he can not  have make use of more proper and plain word to show his mosely report  intention to devise to his mother these term exonerate of the mortgage money  but the defendant insist on the decree whereby stride stride may redeem and  lady stride be to assign to he on his pay off the mortgage money this decree  be right as the case then stand for Litton Litton can not make those term  absolute against those in remainder who claim under the will of sir George  stride and if Robinson Littons remainder have depend on the same will he too  will have have a right to redeem in his turn and lady stride can only have the  benefit of the money but the court foresee that the remainder to stride stride  will be spend in the compass of a life that at that time he have no issue and  that if he never have any son and Darnelly no title another case may happen  such as have now real come to pass have make no provision for the defendant  William Robinson Litton though he insist in his answer to that bill that he be  entitle to redeem those term as remainderman in fee but have leave that point  open for the judgement of the court as the fact likewise have do which pass  subsequent to this decree William Robinson Litton pay off the mortgage money  out of the asset of Litton Litton and the term be assign to Selby Amherst who  assign they to Mascal and Bedingfield by the direction of stride stride with  the same reservation as in the decree the case between stride stride and lady  stride be very different from the case between the plaintiff and William  Robinson Litton stride stride take under the will of sir George stride but  William Robinson Litton under the will of Litton Litton who be only tenant in  tail with a remote remainder in fee and not have suffer a recovery can do  nothing to put the intermediate remainder to stride stride in a worse  condition than it be by the will of sir George stride and can not make the  term absolute as to he who claim by a title paramount but William Robinson  Litton claim under the will of Litton Litton himself who can give he the  inheritance and his mother the term which be not to be consider as attendant  on the inheritance and though they be create for a particular purpose yet the  owner may order they to be keep on foot for the benefit of a devisee as well  as have create original term out of the inheritance by his will and though  this intention can not have its full effect against stride stride it may  against William Robinson Litton and therefore we hope the plaintiff shall have  these term assign to he on payment of the mortgage money Mr fazakerly as the  question be between two voluntary devisees neither of they be entitle to a  preference the intention must be mosely report adhere from the word of the  will which must operate if the testator have a power to devise and he have the  remainder in fee if the intermediate estate determine the equity of redemption  of these term be in he and his heir which sure he may dispose of so the only  question be whether he have dispose of it the mortgage lease be to be assign  which extend to the whole interest the testator know they be mortgage lease  and of more value than the money they be security for and as he have declare  they shall be assign to his mother he have likewise declare to what purpose to  her sole use and benefit and for how long a time during the residue of the say  term so that to desire these term to be take from her be to desire contrary to  the express word of the will as he have a power over the whole term have he  reserve any part of they out of this devise it be say such a devise be not  prudent or reasonable but your lordship will consider what he have do not  whether he have act prudent or otherwise and what he have do be for his mother  it be possible he may design for her the mosely report er p money only it be  possible he may design her the term and if so the word of the will be to turn  the balance and they be in our favour as to the decree that be so far from do  we a prejudice that it make strong for we for if these term have be to attend  the inheritance the same direction will have be give as be on the payment of a  mortgage to one bridge on another estate which be express order by the decree  to be assign over in trust to attend the inheritance and the care the court  take in these different direction show their opinion that it be not necessary  direct to consider our case because stride stride may have child but it be  necessary to decree the mortgage term shall be assign as stride stride shall  appoint because he be not only entitle to the equity of redemption as tenant  for life but he have a right also to be reimburse pro rata from the owner of  the inheritance but then those assignment be to be subject to such direction  as the court shall think fit to make when proper party shall be before they  the decree provide for the only person who be then plaintiff but it be  necessary to reserve the consideration in case stride stride shall die without  issue whether the term be absolute in lady stride or whether the equity be  devise to William Robinson Litton who then claim it by his answer and it be  therefore very odd for the defendant to insist on this decree which  notwithstanding give he no equity of redemption and so be rather against he or  to say that our right shall be determine on implication by this decree mosely  report the rentcharge devise to the mother be not on this estate but on the  other land which be a further confirmation that he have dispose of these term  to her and the objection that the devise of the inheritance without the term  be of no value and that therefore Litton Litton can be suppose to have devise  they to his cousin separate from these lease be of no weight because he have  leave he by the same will several other estate of great value Mr will for the  defendant William Robinson Litton the single question be whether by this will  the mortgage money only be give to lady stride or the term themselves the  council for the plaintiff say the word and intention of the testator be plain  for they and the decree to or at least that it leaves the point at large I beg  leave to differ from they and say first that the word of the will be plain for  we there be two interest in these term the legal interest which be in the  mortgage and the equitable interest which be in the owner of the estate and  nothing be intend to be assign by this will but the legal interest only and  the testator may and will have use other word if he have design to pass the  whole interest as that the whole interest or term shall be for her sole use  and benefit or that the owner of the estate shall have release to her their  equity of redemption or will have devise to her the term themselves it be the  mortgagee who be to assign to her and they can assign only the redeemable  interest they have and he say that the mortgage shall be keep on foot which be  word make use of when the term be design to protect the inheritance and the  word for her sole use and benefit make no alteration in the sense for what be  she to hold for her sole use and benefit why what be assign to her which be  only the interest of the mortgagee and the word so the intention of the  testator be with we we be his cousin germane to who he intend a beneficial  devise and with a design to establish his name and will he have give away then  such a considerable part of the estate as these term of a thousand year and  leave we only a idle reversion he may as well have devise the estate to his  mother and direct his executrix to pay off the encumbrance they say if he have  design her the money only he will never have use such a circuity yes the money  be liable to be lose but these land he know be a good security for so much  money but they say the decree have not determine this point and that the  reservation be in their favour but by proper party the court can not mean such  as will dispute the right to redeem in case stride stride die without issue  for lady mosely report stride and William Robinson Litton be party to that  suit so that proper party to this point be not then want and William Robinson  Litton do not insist in his answer that he and not lady stride but that he and  not the plaintiff be entitle to the equity of redemption and the point reserve  do not regard lady stride but the plaintiff mosely report er p Tuesday morning  march the that Mr attorneygeneral for the defendant William Robinson Litton  these term be allow by both side to be redeemable but the question be by which  of the party whether by the plaintiff or the defendant William Robinson Litton  and this must be determine by the will and the decree as to the first we shall  consider the word and the intention of the testator there be two interest in  these term the legal interest in the mortgagee which stand as a security for  their money and the equitable interest of redemption in those who have the  inheritance and no word of the will be applicable to this equitable interest  but his intention be that his executor shall purchase the legal interest for  his mother there be no devise word of these term to her but only a direction  to his executor to pay off the say mortgage and that the mortgage lease shall  be keep on foot for otherwise on redemption the term will have red in the  inheritance then that they shall be assign by the mortgagee to his mother and  there be no direction but as to their interest and the word during the residue  of the say term be necessary because the mortgagee have such a interest and  they will have be insert in any common assignment the be still call mortgage  term and there be direction for his heir to join in the assignment or to  release the equity of redemption but bare that the mortgagee shall assign  therefore in point of law this assignment will be for the residue of the term  and in point of equity it will be subject to redemption as to his intention it  be impossible to believe the estate then stand he intend to devise to her  these term of one thousand year but it be strange they say he shall use such a  circuity if he design her only the money why can he not direct have devise it  to her the question never be on the reasonableness of a devise but what the  testator have devise though better reason may be give for that than why he  shall devise her the term he may rather use that the encumbrance shall be in  her hand than in a stranger and may think it for her advantage to have her  money lie out on such a good security by their construction though he design  the bulk of the estate shall go in his name yet he devise away absolute term  of one thousand mosely report year why do not he devise the fee to her he have  give his mother a worse estate without any advantage to he in reversion and  the intention of the testator will further appear from consider how the estate  stand limit at the time of his make the will Litton Litton be tenant in tail  remainder to stride Bedingfield for life remainder to his first and every  other son in tail male with a contingent remainder to Darnelly and his issue  male and Litton Litton have also in expectation that his wife may be enseint  of a son they must suppose then that it be Litton Littons intention that  during the continuance of those estate his mother shall have the mortgage  money only for he can not bar those of their right of redemption who claim  under the will of sir George stride and that he have express his intention in  the same word by which after the determination of those estate he give her the  equity too whereas it be probable those intermediate remainder will continue  as long as the term themselves so they will make the same word carry two  meaning during those estate to be only a devise of the money and when they be  determine of the term themselves we shall next consider the decree in which  have determine this question in favour of we and that be not the point reserve  because all party be then before the court that be proper to contest it it be  agree that the will of Litton Litton can not prejudice those who claim under  the will of sir George stride then who be proper to controvert this point but  lady stride and William Robinson Litton who be both before the court and not  the son of stride stride and Mr Darnelly for they be not concern in this  question because they claim under the will of sir George stride by the first  clause of the decree the master be to take a account of what be due on the  mortgage and William Robinson Litton be to pay off what be report due out of  the asset of Litton Litton and the mortgagee be to assign to lady stride for  security of so much money if the court be of opinion the term belong to her  will they have give this direction that they shall be assign as security yes  they say because they be subject to redemption by stride stride and these term  on his pay of the money be to be assign as he shall appoint this direction be  in regard to the apportionment of the money for tenant for life be not oblige  to pay off the whole mortgage money but those in the reversion must contribute  and this assignment be to be subject to the further direction of the court it  be not the mosely report er p assignment to lady stride but this to stride  stride that the court have reserve a power over when proper party be before  they which be those who claim the inheritance under the will of sir George  stride against who stride stride have a equity of apportionment if the court  have design what they insist upon the decree will not have make the same  reservation on both assignment Litton mosely report Litton direct that all the  mortgage on the estate shall be pay off out of his asset which on payment of  the money will consequent attend the inheritance but when tenant for life come  to redeem these particular mortgage in question it will have be injurious to  he for the court to have direct they shall attend the inheritance because he  be entitle to a contribution and this account for the different direction of  the decree as to these and the mortgage to Mr bridge and they can vary the  decree by this original bill but they must either rehear that cause or bring a  bill of review Mr rider by the plain construction of the word of this will it  appear that the testator design these mortgage term to his mother only as  security the first direction be that his executrix shall pay off the mortgage  if he have say no more this will have be for the advantage of the several  remainderman but then the mortgagee be to assign to lady stride can he use  plain or clear word to show that he design her the money only for the natural  meaning of they be that the mortgagee be pay off shall assign to her and she  stand in their place and the word for her sole use and benefit relate only to  the enjoyment of they as mortgage the counsel for the plaintiff own that  during the continuance of the remainder these term must be consider only as  security and can it be imagine that after so many estate spend the same word  shall have another signification but the decree have plain determine this  question whereby the mortgage term be direct to be assign to lady stride as  security if these word stand single they will be a incontestable evidence for  we and the follow word make no alteration and this assignment be to be subject  to such direction as the court shall think fit to make when proper party be  before they for this be only speak of the assignment then last mention to  stride stride and it be necessary to insert those word for otherwise the  several remainderman will have the benefit of his redemption but suppose it  his intention to give these term to his mother the devise can take effect  suppose sir George stride have create these term in trust to attend the  several remainder in tail and after the expiration of those estate the  remainder over such a remainder will not be good because a term can be limit  over after a estate tail by this devise they be make term in gross and  separate from the inheritance so that a recovery by any of the tenant in tail  will not be a bar to it and therefore such a devise be void by the doctrine of  perpetuity mosely report Lord chancellor it seem to I that this question be  never before the court the decree say the mortgage shall be pay off out of the  asset of Litton Litton and that the mortgagee shall assign to lady stride or  her appointment in order to secure to her the principal and interest subject  to redemption by stride stride and then the mortgage be to be assign to he and  the assignment be to be subject to such direction as the court shall think fit  to make when all proper party be before they which must be mean of this last  assignment to stride stride the bill be bring by stride stride to have the  mortgage discharge lady stride by her answer say she be entitle to the money  and Robinson Litton say he in entitle to the equity of redemption as devisee  of the reversion lady stride insist that the mortgage money be to be pay off  out of the asset of Litton Litton and the term assign to her but take no  notice of what interest she have in they and this be the only point for the  direction of the court the case then before we be no more than this a estate  be limit to one in tail male remainder to another for life remainder to his  first and every other son in tail male on a contingency remainder over to  another in the same manner reversion in fee to the tenant in tail the tenant  in tail make his will and thereby take notice of two mortgage on the estate  direct his executrix to pay they off and that the mortgage lease be keep on  foot and assign to his mother for her sole use and benefit during the  remainder of the say term which be term in gross in the mortgagee if the  mortgagor indeed pay off such mortgage the term will attend the inheritance  but as he have a property in they he may certain disannex they what then do  the testator intend to give by these word not the money for the mortgage be to  be discharge out of his personal mosely report er p estate not that the term  may attend the inheritance or be surrender but to the end that the mortgagee  may assign they to his mother not as a trustee but for her sole use and  benefit so that the word be very plain and clear and though the testator have  no power to make these term absolute against the intermediate remainderman yet  the will must take place as far as it may and the decree can go no further  against they than to put the mother in the place of the mortgagee but now  those remainder be all spend the case be only this tenant in fee of land  subject to two mortgage order his executor to pay off the mortgage money out  of his personal estate and devise the mortgage term to one and the inheritance  to another as both part of such a will be consistent both the devisees must  take these term never attend on the inheritance but be substantive term and  give to his mother immediate or suppose they be attendant mosely report they  be not devise over after the determination of estate tail for the devise do  not take effect till after the death of the testator when there be only a  estate for life in be be it therefore decree that it be refer to a master to  see what be due for principal interest and cost on the say mortgage and that  on payment thereof by the plaintiff the mortgagee shall assign to he and he be  to enjoy the say term absolute against the defendant William Robinson Litton  and his heir and the defendant cross bill be to be dismiss and as to the  defendant Darnelly be it decree that he take no estate by the will of sir  Georqe stride post Cas Monday march the d