atkins case roberts v Dixwell et e contra December the that see Morgan v  Morgan mad sub nom sand v Dixwell in re Jeaffresons trust lr Eq and case there  cite Appleton v Rowley lr Eq Cooper v Macdonald Ch d sir t S by will direct  his trustee to convey a full four part of all his freehold land c to the use  of his daughter Priscilla for life and so as she alone or such person as she  shall appoint take and receive the rend and profit thereof and so as her  husband be not to intermeddle therewith and from and after her decease in  trust for the heir of the body of the say Priscilla for ever this be a  executory trust the wife take a estate for life only and the husband therefore  not entitle to be tenant by the courtesy sir Richard Sandys under his will  direct his trustee after raise certain sum for payment of portion pursuant to  a marriage settlement and of his debt and funeral expense to convey a full  four part of all and singular the freehold land c in trust for the separate  use of his daughter Priscilla for and during the term of her natural life and  so as she alone or such person as she shall appoint shall take and receive the  rend and profit thereof and so as her atkins er p husband be not to  intermeddle therewith and from and after her decease in trust for the heir of  the body of the say Priscilla for ever the testator then give the other three  four to his three other daughter and the heir of their body and in case of the  death of certain of his daughter therein name without issue he give the share  of her or they so die to the survive daughter but the share of his daughter  Priscilla to be convey in trust as aforesaid the principal question be whether  this be a trust execute or executory for if execute Priscilla be then tenant  in tail and her husband entitle to be a tenant by the courtesy the contrary if  executory only part of the land devise be of the nature of gavelkind and  Priscilla have leave two son another question be make whether these particular  land must descend in gavelkind or go accord to the rule of the commonlaw Mr  fazakerley for the son of Priscilla the question be whether the word heir of  the body will be construe to give they a estate derive from their ancestor or  whether they take by purchase he insist that it appear to be the intention of  the testator that the husband shall have no benefit and therefore can be  tenant by the courtesy the wife marry improvident and against he father  consent she may have dispose of the rend and profit by will there be not one  moment of time where the husband have the least right or ever be in possession  of a part that of the estate he say he do not recollect any one case where a  husband can be tenant by the courtesy unless he can show seize in himself in  right of his wife upon the death of Priscilla the husband here can have no  right at all for there be no long a continuation of the wife estate he cite    light fol a to show that a husband must have some right even in the lifetime  of the wife and that it commence in her lifetime and not at her death where  the wife have a separate interest the court consider her always as a feme sole  if he have nothing during the coverture how can he entitle himself to any  thing at the time of atkins her death when all her interest be go and it be  express lard down by Lord coke that a tenancy by the courtesy be initiate in  the lifetime of the wife Mr attorney general for the defendant he insist where  a trust estate be attend with all the similar circumstance that there can be  in a legal estate to give a husband a tenancy by the courtesy this court will  make no difference in the construction Lord chancellor the question be how  this trust ought to be carry into execution and in what manner the trustee  ought to convey Priscilla herself be dead and yet it must be consider what  kind of estate the trustee ought to have convey to her if she have be live  first whether to Priscilla in tail or to her for life only if the convey a  estate tail will have answer the purpose of the testator in his will then this  case need not have be vary from former case but I be of opinion the convey a  estate tail here will have defeat the intention of the testator to be sure  where a estate have be grant or give by will to a for life and to the heir of  the body of a such a devise have be by the commonlaw unite so in the first  person as to convey to he a estate tail the same construction too have prevail  with respect to trust estate but in the present case here be all sort of trust  as to mortgage sell c bagshaw v Spencer post vol but the latter part of the  trust be mere executory to be carry into execution after the performance of  the antecedent trust the whole direction therefore fall upon this court and  they be to direct how the party be to convey this court have take much great  liberty in the construction of executory trust than where the trust be actual  execute as in the case of the earl of Stamford v sir John Hobart bro par can S  c bro p c and ed concern sergeant maynard will which come on upon exception to  the master report Nov the that and the resolution affirm in the house of lord  the case of Papillon v voice wms and Lord glenorchy v Bosville Cas in Eq in  Lord Talbot time see also Leonard v earl of Sussex vern bagshaw v Spencer post  vol Baskerville v Baskerville post vol read v Snell post vol these case show  that the court have take a great latitude and the point which have govern they  have be the intention of the testator the word here in trust for Priscilla for  and during the term of her natural life and so as she alone c have no doubt  some meaning and there be a particularity in the expression because he have  give plain and express a estate tail to his other daughter atkins er p in  different part of his estate but I do not think that this alone will have be  sufficient thing must not only be consistent in executory trust accord to the  intention of the testator but must be do accord to the form and method of  conveyance now I do not know atkins any instance where a estate for life  convey by deed or will to the wife for her separate use have be construe a  estate tail in the wife if the testator have intend a estate tail he will have  do it by way of remainder some stress have be lie upon the word therewith as  if it relate to the last antecedent the rend and profit but it may be take in  a large sense and refer to the whole four part if the wife have be entitle to  a estate tail I do not see but the husband must have be tenant by the courtesy  it be say this be a executory trust and nothing to be convey till all the  other precedent trust be execute and consequent the estate continue in the  trustee and there be no seize in the husband and wife but it have be hold in a  case of a trustestate for payment of debt and in the case of a equity of  redemption that a husband may be tenant by the courtesy see Casborne v inglis  ante for in the case of a trust for payment of debt it be only a chattel  interest in the trustee vide tread v down post vol and the first taker have a  freehold over if therefore a trustestate be not such a one as be sufficient to  bar the husband of his tenancy by the courtesy the next question will be  whether the devise to the wife for her separate use will bar he I be of  opinion it will not because here be a sort of a seize in the wife see Hearle v  Greenbank post vol my Lord coke say that to make a tenancy by the courtesy  there ought to be a right in the husband inchoate in the life of the wife but  he do not say that he shall be seize of the rend and profit therefore I think  if this have be a estate tail he will have be entitle to be tenant by the  courtesy notwithstanding this court by their authority may have prevent the  husband from intermeddle with the rend and profit during the life of the wife  but upon the whole I be of opinion the wife can not take a estate in tail but  take a estate for life only and the ground of those case which have be mention  do not arise from the court be make a different construction upon a trust than  upon a legal estate but that some circumstance in the will have induce the  court to make a narrow construction therefore as it be plain the intention of  the testator that the husband shall have no manner of benefit from the estate  either in the lifetime of the wife or after her decease for immediate upon the  death of the wife it be convey in trust to the heir of her body for ever the  husband of consequence be absolute exclude for a tenancy by the courtesy  depend absolute upon a estate tail as this be my determination on the  construction of sir Thomas sandis will the estate must be convey to Mr Richard  Sandys the old son of Priscilla and the heir of his atkins body with remainder  to the second son and the heir of his body Reg lib b fol and not accord to the  custom of gavelkind because agreeable to the opinion I have now give it must  go accord to the rule of commonlaw be not a trust execute but executory and to  be carry into execution by this court atkins er p