case Alleyn versus Alleyn at the roll Mr attorneygeneral for the plaintiff  Samuel Stephenson on the that of October make his will inter all in these word  and as to and for all the reversion and inheritance of m say message land and  tenement I give and devise the same to Samuel Alleyn my grandson for and  during c and as to and concern my rend arrear interest and money due and all  other my personal estate whatsoever debt funeral and legacy be first pay and  discharge I give the same to my executor to be lie out in a purchase of land  to be settle in trust to the say Samuel a lleyn my grandson c and make Mr  Alleyn the father of the defendant Samuel and the plaintiff mrs Alleyn his  daughter the wife of Mr Alleyn executor Samuel Stephenson after the make of  this will on the that of October enter into article for the purchase of a  estate for pound and the money be agree to be pay on the first day of may  follow the testator by his codicil date the that of October devise to his  daughter Lydia land of pound ayear to be purchase for her by his executor out  of his personal estate on the d of January the testator advance pound to the  vendor and take a assignment of a mortgage for pound on the premise and the  deed recite that whereas Samuel Stephenson have contract for the purchase of  these land it be thereby agree that if they be convey to he the aforesaid sum  shall be take as part of the purchasemoney and the term remain attendant on  the inheritance but if the premise be not convey that the mortgagor shall  redeem on the common term April the testator die leave two daughter Esther  Alleyn the plaintiff and Lydia who be since mosely report dead Mr Alleyn prove  the will and by indenture date the that of April the premise contract for be  convey to he and his heir for and in consideration of pound pay by Mr  Stephenson in his lifetime and of pound pay by Mr Alleyn out of the personal  estate of the say Mr Stephenson and Mr Alleyn assign the mortgage in trust for  he and his heir Mr Alleyn die and the land descend on the defendant as his old  son and heir and mrs Alleyn the sole survive daughter and heir of Samuel  Stephenson file this bill to have the estate reconvey to her and the mortgage  assign as she shall direct the testator have enter into article for the  purchase of this estate it be consider in this court from that time as part of  his real estate and can pass by his will because it be purchase after the make  of it and there be nothing peculiar to this case to distinguish it from the  common case for though after the execution of the article the testator take a  assignment of the mortgage that be relative to mosely report er p the article  and can be consider as part of his personal estate but only as a payment of so  much of the money and the rather because though the testator die the  conveyance be execute within the time if these land have be convey to the  testator in his lifetime there can be no doubt but they will descend on the  plaintiff his heir at law and this court will consider this equitable estate  in the same manner Mr lutwych this be a very plain case if one article for the  purchase of land if the money be pay in part or though no money be pay it have  be frequent determine that this be a purchase in equity and that the land will  descend to the heir and his executor must pay the money because the covenant  to pay it bind the executor as on the contrary in case of a mortgage in fee  the heir of the mortgagee be oblige to convey to the executor though he have  no other provision then the only question be whether this estate will pass by  the will but it be settle in the case of sir Owen Buckingham where the devise  be of all the land the testator shall be seize of that the land whereof the  testator be not seize at the time of the make his will will not pass for the  statute h ch and h ch enable only person have land c to devise they more Cas  Gouldsb cro Elizabeth a man may devise all the personal estate whereof he be  or shall be seize for that be perpetual fluctuate and therefore if the  testator be to be consider as the purchaser of these land by enter into  article for the purchase of they in his lifetime mosely report they must  descend to his heir and though the executor pay the money and take a  conveyance in his own name he be but a trustee for the heir and the testator  devise only the residue of his personal estate after payment of his debt c but  this be a debt the vendor can compel the executor of the vendee to pay Mr will  for the defendant the single question be whether the estate contract for shall  descend to the plaintiff or be consider as part of the trust estate to be  settle by the will on the defendant when purchase with the personal estate if  a man devise his personal estate to be invest in a purchase of land it be  consider as real estate in this court and shall go to the heir of the devisee  and not to his next of kin another rule relate to will be that the intention  of the testator must be observe and particular where any thing executory be to  be do in which case equity will construe a will in the same manner as it do  article and to fulfil the intention of the testator will expound it even  contrary to the word it can also be deny that when a man article for the  purchase of a real estate it shall descend to his heir and his executor shall  pay the money but this rule hold only between the heir and executor or the  heir and the next of kin or the devisee of the personal estate but here the  defendant be not the next of kin to the testator or the devisee of the  personal estate but devisee of the real estate for the testator devise to he  all his real estate and then give all his personal estate to his executor to  be lie out in land for his benefit which must be consider in the same manner  as if the personal estate have be actual invest in land so that it be contrary  to the intention of the testator that the defendant shall have every thing to  call this a real estate and be put a different construction on these article  from what they hear at law pure to defeat his intention the article not be  carry into execution the law will still consider this as so much of the  personal estate and do this court ever put a construction contrary to law on a  deed or will pure to overthrow the intention of the testator where the dispute  be betwixt the heir and next of kin his intention seem to be that his heir  shall have it by his enter into article and therefore the court in that case  be carry on his intention in the case of orm versus smyth vern where money due  by bind be devise and part be pay in the lifetime of the testator yet the  legatee have the benefit of the whole money there the legacy be change by the  party himself here it remain the same for it be trust money when he die and  the purchase be mosely report afterward carry on with that money and therefore  the estate and trust must go together master of the roll I be of opinion that  the plaintiff be entitle to this estate contract for and the purchase whereof  be complete by the executor and though the conveyance be take by the executor  in his own name he be only her trustee so the question be open whether this  estate shall be consider as real estate the council for the defendant do not  deny that it ought to be consider as real estate if it be not for the  direction of the will to lie out the personal estate in land in mosely report  er p the case of commissioner Trimuel who contract for land at a future day  and then devise all his land Lord Harcourt hold the land contract for will  pass which strong prove that land contract for be to be consider as purchase  and then it be as clear that these land be contract for after the make the  will will not pass by it the case of sir Owen Buckingham be adjudge on a  ejectment in the court of common plea and afterward on another ejectment bring  in the court of king bench and that judgement affirm in parliament on a writ  of error and therefore since these land will not pass by the will and must be  consider as part of the testator real estate they must descend to the  plaintiff his heir and she can be defeat of they but by the express word of  the will or by necessary implication and I think the word of the will that the  residue of his personal estate shall be invest in land c be not either a  express disinherison or by implication Nels vo Rep in canc more Cas Cas the  personal estate be not to be consider as it stand at the time of the make the  will but at the time of the testator death because till that time it be in a  constant fluctuation but so much of it as will serve for the purchase of these  land lose the quality of personal estate in this court at the time of his  death and become real estate and he have show his intention to alter the  nature of this estate have by a subsequent act control his will as to so much  and this be clear from hence that if he have live to complete the purchase the  land will not have pass as real estate because the purchase be subsequent to  his will nor as personal estate because the nature of it be alter and the  accident of his die before the purchase be complete make no alteration so here  be no ground to say it be his intention to give all his real and personal  estate because he be go to apply part of his personal estate in such a manner  that it will not have pass by this will either as his real or personal estate  and it will be the same thing if he have give the defendant all his real and  personal estate for his intention plain appear mosely report to take so much  out of his personal estate and he show no design to pass it as his real estate  because by law it can not pass by this devise Chan Cas vern   light   Entr  raze h f n b Chan Cas vern Plowd h   more Anders Poph leo Anders Swinb part  sect I part sect two Fitzherbert day Swinb part sect n Wednesday February the  that