atkins case December and April that and that smart lethieullier Esq and  richard rogers gentleman and other by original bill plaintiff mary tracy the  wife of thomas tracy Esq late mary dodwell and other defendant and smart  lethieullier and richard rogers gentle survive executor and trustee of sir  William dodwell by supplemental bill plaintiff dodwell tracy a infant by  thomas tracy his father and guardian defendant S c ante post Amb Lord  Hardwicke of opinion to confine the contingency in the will of sir W d of his  daughter die without issue of her body live at her death to the death of sir h  n a remainderman under the will before and that the subsequent limitation to  sir h n after attain and to S l and c l be not contingent but vest remainder  extract from the will of sir William dodwell upon which the point in this  cause depend first I give and devise all my manor land c in the county of  Gloucester Middlesex Buckingham ken and the city of London and elsewhere in  his majesty dominion to my daughter mary dodwell during her natural life and  from and after the determination of that estate to several trustee therein  name and their heir during the life of my say daughter in trust to preserve  the contingent remainder c herein after limit from be destroy and from and  after the decease of my say daughter to the use of the first son of the body  of my say daughter lawful to be beget and to the heir male of the body of such  first son lawful to be beget and for default of such issue to the second three  four five six and every other son of my say daughter lawful to be beget  several and successive as they shall be in priority of birth and seniority of  age and the heir of their respective body lawful to be beget several and  successive as they shall be in priority of birth and seniority of age and for  want of such issue to the daughter or daughter of my say daughter mary dodwell  several and to the heir of their respective body lawful to be beget then come  a proviso to raise portion for young child charge upon the real estate and  estate to be purchase with the personal estate atkins item I do hereby give  and devise unto the say trustee c and to the survivor atkins er p of they all  my mortgage stock annuity bind ready money plate and all other my personal  estate that I shall die possess of or be entitle unto at the time of my  decease and not otherwise disposedof b this my will upon trust after payment  of debt and legacy that they shall convert the say stock annuity and other  personal estate into money and lie out such money in the purchase of land of  inheritance in the say county of Gloucester or some other adjacent county to  be settle upon my say daughter and her issue in such manner as I have already  devise my say manor wood woodgrounds tenement rend annuity and hereditament  and upon this further trust that the rend and profit of the land so to be  purchase when purchase and also the rend of all my message land tenement and  hereditament shall be lie out by my trustee c in the purchase of other land of  inheritance in the same county to be settle in the same manner and to the same  use as the land so purchase with my say personal estate be direct to be settle  and I do hereby further will and direct that the say trustee shall from time  to time receive as well the rend and profit of my say manor message land c  herein before by I devise to my say daughter during her minority as also the  rend and profit of the land so purchase with my say personal estate and profit  of my say real estate and lie out the same in the purchase of other land of  inheritance in the same county or county to be convey and settle in the same  manner as the land so direct to be purchase by and with my say personal estate  shall be settle and in case that my say daughter shall depart this life  without issue of her body live at her decease then I do hereby give and devise  unto the say trustee and their heir all my manor message land tenement wood  woodgrounds rend annuity and hereditament whatsoever until my cousin sir Henry  Nelthorpe baronet son of my niece dame Elizabeth Nelthorpe decease by sir  Montague Nelthorpe baronet also decease shall attain the age of one and twenty  year and also all my personal estate to be lie out in the purchase of land as  aforesaid upon trust that they or the survivor of they or the heir of such  survivor shall from time to time receive the rend and profit thereof annual  lie as well of the estate so to be purchase as of all other the premise so as  aforesaid devise to they and lie out the same in the purchase of land of  inheritance in the say county of Gloucester or some other adjacent county and  also the rend and profit of such land so to be purchase by the rend and profit  of the premise until my say cousin sir Henry Nelthorpe shall attain such age  one and twenty year then I will that they or the survivor of they or the heir  of such survivor shall convey the land so purchase to the same use and upon  the same trust as I by this my will do devise all my say manor message land  tenement rend annuity hereditament atkins and premise after my say cousin sir  Henry Nelthorpe shall have attain his age of one and twenty year as aforesaid  item I give and devise all my manor message c unto my say cousin sir Henry  Nelthorpe after he shall have attain his age of one and twenty year he take  upon he the name of dodwell for and during the term of his natural life  without impeachment of waste and from and after the determination of that  estate to they the say trustee and their heir during the life of my say cousin  sir Henry Nelthorpe in trust to preserve the contingent remainder herein after  limit from be destroy and from and after his decease to the first and every  other son in tail male and for default of such issue to the daughter and  daughter of the say sir Henry Nelthorpe and the heir of their body and body  and in default of such issue or in case my say cousin sir Henry Nelthorpe  shall happen to die before he attain his say age of twentyone year and without  issue then I give and devise the same manor and premise to smart lethieullier  he the say smart lethieullier take upon he the name of dodwell for and during  the term of his natural life without impeachment of waste and from and after  the determination of that estate to the say trustee and their heir during the  life of the say smart lethieullier in trust to preserve the contingent  remainder herein after limit from be destroy c and from and after his decease  to the first and other son of the say smart lethieullier in tail male and for  default of such issue to Charles lethieullier he take upon he the name of  dodwell for and during the term of his natural life without impeachment of  waste and from and after the determination of that estate to the say trustee  during the life of the say Charles lethieullier in trust to preserve  contingent remainder herein after limit from be destroy c and from and after  his decease to the first and other son of the say Charles lethieullier in tail  male and for default of such issue then atkins er p there have be several  order in the cause of lethieullier and Tracy in relation to a settlement to be  make of the estate purchase pursuant to the will of sir William dodwell and  the decree make the that of July for carry the trust thereof into execution  and that the settlement shall be make with the approbation of the master he by  his report of the d of July certify that he have settle the conveyance accord  the plaintiff take the follow exception to the master report for that he have  between the limitation to the daughter of the say mary Tracy and the heir of  their respective body and the estate limit to the say smart lethieullier and  to the say Charles lethieullier and their issue male successive insert these  word and in case the say mary Tracy shall depart this life without issue of  her body live at her decease whereas atkins accord to the intent and meaning  of the say will of sir William dodwell it ought to be and in default of such  issue Mr Tracy atkins of counsel for the defendant against the exception take  by the plaintiff in the supplemental bill to the master report the question  upon which this exception will depend be whether the remainder to the  Lethieulliers be a contingent or a vest remainder under the will of sir  William dodwell first whether the word make a contingent remainder the  testator can not possible make use of proper word for the purpose of create a  contingent remainder and in order to show this permit I to mention two rule  lie down by Lord coke to determine what be contingent estate the first be  Lovies case Rep a that where it be dubious and uncertain whether the use or  estate limit in going to be shall ever vest in interest or not then the use or  estate be in contingency because upon a future contingent it may either vest  or never vest as the contingent shall happen to apply this to the present case  if mrs Tracy die without leave issue the estate limit to the Lethieulliers in  going to be vest but if she die and leaves issue love at her death the estate  to the Lethieulliers do not vest then it be dubious whether the estate limit  to the Lethieulliers will ever vest in interest or not and fall exact within  the rule in Lovies case the second rule be if a particular estate upon which  the remainder depend may determine before the remainder may commence then the  remainder be contingent Lord coke Rep p Borastons case so here the estate for  life to mrs Tracy which be the particular estate whereon the remainder to the  Lethieulliers depend may determine before their remainder may commence for air  Tracy may die which determine the particular estate and yet if she leaves  issue live at her decease the remainder to the lethieullier do not commence  because their remainder can take place unless she die without issue and  therefore accord to the rule in Borastons case it be a contingent remainder  atkins next as to the intention of the testator there be nothing upon the face  of the will to warrant the construction the plaintiff will put upon it it be  of his draw the word he use be not to be suppose the work of chance but of  design and intention because sir William dodwell be of the profession of the  law and be concern chief in conveyance he must know the force and legal  operation of these word the situation of the testator at the time of make the  will be material he be very near seventy the age of his daughter also at that  time she be only one year old his situation likewise with respect to the  limitation be proper ingredient in the consideration of this case the  Lethieulliers be not at all relate to he in consanguinity very remote even in  affinity great if not double great nephew to sir William dodwell first wife  the testator be so old and his daughter so young he must of course foresee a  long minority be it probable therefore he shall extend the chance of the  Lethieulliers succeed to his estate beyond the death of his daughter without  issue of her body live at her decease be not the odds very great consider how  extreme young she be that she do not live to be of age and can it be suppose  that for the sake of such distant relation or hardly any relation at all he  will keep so large a property lock up for so great a length of time atkins er  p mrs Tracy be a infant of three year only when he die she may not probable  have issue in or year after his death that issue may live year more which be a  period of no less than year and yet die before they be of a proper age to bar  these remainder and the issue of that issue in the same manner and so on in  infinitum this will have be create a perpetuity which the testator know be  what the law will by no mean endure and therefore it be natural to suppose  will choose the word that he have here make use of shall convey no other  meaning and import than what be contend for in behalf of the defendant and  that I be right in insist that the remainder to the Lethieulliers be a  contingent remainder and can take place unless mrs Tracy the daughter of the  testator shall depart this life without issue of her body live at her decease  atkins for from the observation that have be make on the situation of the  testator at the time he make his will the age of his daughter and the for that  remote relationship in which the Lethieulliers stand to he this appear to be  the obvious and proper construction and the master as he be very well warrant  to do have pursue the very word of the will which correspond too with the  intention of the testator it be humble insist there be no foundation for the  exception take by the plaintiff to the master report and that it ought to be  overrule Lord chancellor it be extreme plain to I that the testator sir  William dodwell intend to make a strict entail nothing show it more strong  than the clause in the will which oblige the remainderman to take the name of  dodwell as to his real estate he be seize of at the time of make his will they  be devise as legal estate and no trust create of they then with regard to the  other branch of his estate the personal estate be by the will direct to be lie  out in land to be convey to trustee to what use why to the same as he have  settle his real estate he leave at the time of his death first question  whether the limitation to sir Henry Nelthorpe be contingent in case mrs Tracy  shall die without issue of her body live at her decease or if he attain that  it shall be a vest remainder and also whether the remainder to the  Lethieulliers be likewise contingent remainder the first limitation under the  will be to the testator daughter for life then to her first son and the heir  male of his body only this be a mere slip and oversight because the remainder  to the other son be to they and the heir of their body general then he provide  portion for the young child of his daughter mary dodwell now mrs Tracy and  then come the devise to the trustee then a power to they to receive the rend  and profit c till his daughter shall attain her age of year and then follow  the clause which create the difficulty and in case my daughter shall depart  this life without issue of her body live at her death atkins then he give all  his manor c to the say trustee until his cousin sir Henry Nelthorpe shall  attain his age of year this be a remainder and a contingent remainder and the  devise to the trustee be not as be contend a absolute fee but a determinable  fee in case sir Henry Nelthorpe shall die before without issue then follow the  word which show a continuation of the power in the trustee of receive the rend  and profit as well of the estate to be purchase as of all other the premise  and lie out the same in the purchase of other land of inheritance c the very  same he have before give during the minority of mrs Tracy his daughter then  come a substantive independent clause item I give and devise all my manor  message c to my say cousin sir Henry Nelthorpe after he shall attain his age  of year he take the name of dodwell for life with limitation to his son and a  limitation to his daughter and in default of such issue or in case my say  cousin sir Henry Nelthorpe shall happen to die before he attain his age of  year and without issue then to smart lethieullier he take upon he the name of  dodwell for his life without impeachment of waste remainder to his first and  other son in tail male remainder to Charles lethieullier he take upon he the  name of dodwell for his life without impeachment of waste remainder to his  first and other son in tail male and for default of such issue then a blank  leave in the will atkins er p all the limitation of the real estate are as I  say at first limitation to the trustee in case sir Henry Nelthorpe shall die  before and be contingent only during his minority to be sure it be very  awkward pen but his view be as his daughter be extreme young and therefore may  die before sir Henry Nelthorpe attain to accumulate the rend and profit in the  mean time till these contingency be determine and have certain a respect to  this double minority so that after sir Henry Nelthorpe attain his remainder  and all the subsequent limitation as be subject to the contingency be vest one  atkins item I give and devise all my manor c I take to be a substantive devise  and not at all relative to the former devise to the trustee upon the  contingency of mrs tracy die without issue c suppose sir William dodwell have  live till sir Henry Nelthorpe attain twentyone will not this devise to he have  be a vest remainder I be of opinion it will and all the subsequent remainder  will have be so likewise this I take to be the meaning of the testator and not  to defeat all the limitation to the family he have adopt and lie under a  obligation of take his name upon this single contingency of his daughter have  issue at the time of his death the word be in default of such issue not mere  in default of issue of sir Henry Nelthorpe but of all other person who take  under this will and be before mention where the general intent appear to make  a strict settlement though some one limitation may accord to the word seem  contingent yet the general intent shall prevail this construction be very  agreeable to the rule of law and the intention appear upon the face of sir  William dodwell will be much strong in support of the present determination  than in any of the case the case of napper versus sander Hutton be very strong  to show the intent shall control the word there be a limitation determinable  upon the death of husband and wife Margaret sander seize in fee make a feoff  to the use of herself for life without impeachment of waste and after to the  feoff for year if one Nicholas sander and Elizabeth his wife shall so long  live and if the say Elizabeth survive Nicholas her husband then to the use of  Elizabeth for life without impeachment of waste and after the decease of the  say Elizabeth to the use of posthumous sander son of the say Nicholas and  Elizabeth in tail and for default of such issue to the use of Elizabeth wife  of John napper and Dorothy sander and Frances sander one of the lessors and to  the heir of their body remainder to the right heir of Margaret the feoff  Margaret sander die and Dorothy die without issue the feoff enter Elizabeth  sander die Nicholas yet alive and posthumous die without issue John napper and  his wife and say Frances enter and be possess until the defendant as son and  heir of Margaret oust they atkins the question be whether the remainder in  tail to posthumous and the remainder in tail to Elizabeth and Frances be  contingent or execute and it be resolve by all the court that the remainder be  not contingent on the estate for life which be to come to Elizabeth sander  wife of Nicholas but be vest present and it be agree that the estate for life  if she survive her husband be contingent and when that t have happen be by way  of limitation of a use it shall be interpose where the contingency happen as  in chudley case coke lib foe and judgement be enter for the plaintiff this be  beside a construction of use in a feoff therefore more difficult to be come at  than in a will where intention have great weight and the court more liberal in  pursue that intention and yet in that case the contingency of Elizabeth  survive Nicholas be hold only to affect her estate for life and not the  subsequent limitation so in like manner in case my daughter shall depart this  life without issue of her body live at her decease be a contingency which  affect only the limitation to the trustee under sir William dodwell will till  sir Henry Nelthorpe attain his age of twentyone but not the subsequent  limitation to sir Henry Nelthorpe after he shall attain his age of twentyone  or to the Lethieulliers in case he die before twentyone and without issue  brown and cutter Mr justice Raymond report upon a special verdict in atkins er  p b b John cheek have issue four son Burgundy Robert Anthony and John and make  his will in write thus first I will that my wife shall have and enjoy all my  house c in Thames Ditton during her natural life if she do not marry but if  she do marry then I will that my son Burgundy shall present after his mother  marriage enter and enjoy the say premise to he and the heir male of his body  and for default of such issue to my son Robert and the heir male of his body  with remainder to his other son and so over to stranger the question be  whether the remainder to Burgundy be a contingent or vest remainder Mr justice  Jones deliver the opinion of all the judge except the chief the intention of  the devisor be the pole star that ought to guide the judge in the exposition  of will it be necessary to consider what estate the testator intend for his  wife by his will I be of opinion that he intend her a estate only durante  widowhood which Lord coke say   light a be in judgement of law a estate for  life determinable atkins and in plead the grantee shall say that by virtue  thereof he be seize for life which be premise the question will be whether the  wife have a estate durante widowhood the word be I will that my wife shall  have and enjoy all my house land c during her natural life if she do not marry  for what be a estate during widowhood but a estate to continue till she do  marry then the word but if she do marry after my death be no more than in case  the estate shall determine then I will that my son Burgundy shall present  enter c by which it be most plain that here be no contingent remainder but a  estate vest in Burgundy to take effect in possession upon the marriage or  death of the wife that the intent of the devisor be such appear by the  limitation for he intend the land shall go to his son and their issue male and  not to the female which will not be if this shall be a contingent remainder so  in that case where the testator give the estate to his wife for life and in  case she marry then to his son Burgundy immediate after his mother marriage  though Isabel the wife do not marry yet it be adjudge to be a vest estate in  Burgundy this be a much strong construction than in the present case and even  a reject of word to come at the intention which there be no occasion of do  here but retain the word the whole may be consistent as to my own case of  Bellasis versus uthwaite atk S c hill it depend upon the particular pen of the  will Sheffield and Lord orrery December atk S c likewise before I depend on  the construction of a very obscure will of John duke of Buckingham it be take  for grant that the house be leasehold I give my opinion that it go over but  that will be so very particular pen no argument can be draw from it which can  be applicable to the present or any other case I determine that the limitation  to Mr Sheflield be good by construe the word if I have no lawful issue to mean  issue at the time of the testator death on the whole it be clear the intention  of the testator in the present case to confine the contingency of mrs tracy  die without issue of her body live at her death to sir Henry Nelthorpes die  before and that the subsequent limitation atkins to sir Henry Nelthorpe after  attain and likewise to the Lethieulliers be vest remainder and therefore the  first exception must be allow vide fearne count Rem that Ed N B after Lord  chancellor have give his opinion Mr Murray who be of counsel for the defendant  start a new point that if the word in case my daughter shall die without issue  live at her death do not make the limitation to sir Henry Nelthorpe after he  attain his age of and the subsequent limitation to the Lethieulliers a  contingent remainder yet it will still remain a question whether these word  will not give mrs Tracy a estate in tail by implication because if the word  shall not have this construction there be a case may happen which will be  attend with great hardship and absurdity that the old son of mrs Tracy may die  leave a daughter a only child and yet as the limitation to the first son of  mrs Tracy be only in tail male such daughter will be set aside in favour of  stranger and no provision be make for her under the will by any charge upon  the real estate or any otherwise she must starve unless mrs Tracy by be  consider atkins er p a tenant in tail now she have attain her age of twentyone  as incident to such estate can suffer a recovery and by that mean in case of  the accident of a daughter be the only child bear of her son have it in her  power to provide for her la chancellor order that the cause shall stand over  upon this single point till the first day of exception after Christmas