case starling all versus ettric all post and the note thereto subjoin coke  Inst b hark Edward where a person may take by the name of heir though not heir  general sir Samuel starling January convey the manor of S c to two trustee and  their heir upon trust and confidence that they and their heir shall convey the  precedent in chancery er p premise and every or any part thereof to such  person and for such time term and estate as he the say sir Samuel by any write  under his hand and seal in f he presence of two or more credible precedent in  chancery witness or by his last will and testament in write shall direct limit  or appoint and for want of such appointment to the right heir of the say sir  Samuel for ever and after by will date in August sir Samuel devise several  message to charitable use and devise to the plaintiff Samuel starling the  elder his nephew some house in saint sepulchre but he be only to have pound  per annum out of they till his age of and pound to bind he a apprentice and if  the plaintiff Samuel the elder shall die before his age of that then the  trustee shall convey the say house to the right heir male of sir Samuel and  for default of such heir male to the right heir of sir Samuel for ever and do  appoint that the say trustee and their heir shall within six month after  ladyday convey the manor of d c to his nephew Richard starling who be his heir  at law if he shall be then live for term of his life only or if he shall be  dead for his heir male to hold to he and his heir male for ever and for want  of such issue to his own right heir for ever soon after sir Samuel die leave  his nephew Richard his heir Richard have issue jane marry to the defendant  Ettrick and die and it be lie in the bill that sir Samuel have great  displeasure against his nephew Richard by reason of his extravagancy and bad  course and therefore have leave he no estate till he shall be year old and  then only for life and have often declare that he will settle his estate so  that if Richard die his nephew Samuel starling shall have it and after this  settlement and will have tell several person that he have so settle it and the  plaintiff who be Samuel starling the elder and Samuel his son insist that  either Samuel the elder be entitle as right heir male of sir Samuel or else  Samuel the young as heir male of Samuel the elder precedent in chancery to  this bill the defendant demurrer for that it appear of the plaintiff own show  in their bill that they have no title on argue the demurrer it be overrule and  defendant order to answer but the plaintiff be not to examine to any parole  discourse of sir Samuel starling how he intend to settle or have settle his  estate without special leave of the court afterward the plaintiff move the  court that they may have leave to examine to such discourse and declaration of  sir Samuel and insist that such examination have be in the case of the  countess of Gainsborough and earl of Gainsborough Eq Abr pl and of Crompton  and north Chan can and several other case and the party have be relieve upon  such examination for the expound and explain will and if the plaintiff can  amend his case by such examination then to prevent he of they will be to debar  he of his right but on the other side if upon the hear the examination shall  appear impertinent the court can recompense the defendant in cost for the  defendant it be insist that it will be of fatal consequence to admit  examination of this kind to carry estate contrary to the word of a will and  what by law they do import and my Lord keeper incline that way and deny to  admit the plaintiff to examine to those matter afterward the case be argue at  powis house and the substance of what be insist upon by the plaintiff counsel  be that this I be in the case of trust and a will ought to have the most  favourable construction the court can give it and it be very plain what sir  Samuel intend videlicet that his estate shall be continue in the name e and go  to the male of the family and this be not a limitation of a estate but a  direction to the trustee to make a conveyance that the word heir be in many  case even in legal writ c take for heir precedent in chancery apparent as the  father may have a writ quare fill hred to take in hand c which must be his  heir apparent and in the case of burchet versus Durdant Ventris fearne count  Rem where land be devise to the heir of I S now live it be hold that the old  son of I S shall take though in strictness of speech he be not heir during the  life of his father but heir apparent only on the other side it be argue that  if this have be a devise of the legal estate itself it be plain that neither  of the plaintiff can have take any thing by it for it be a know rule in law  that whoever will take as a purchaser by the name of heirmale must be in the  strict sense heir as well as male or else he can take at all and in the case  of burchet and Dardant the word now live alter the case and make precedent in  chancery er p it a description of the person and without these word the heir  apparent can not have take and it will introduce great inconvenience if legal  inheritance and equitable inheritance shall not be govern by the same rule and  the conveyance be to be make within six month after Ladybay if he be not a  person capable to take at that time he can never take at all and the will can  by any proof have any sense and meaning put upon it other or different from  what it will have have without these proof for all the will must be in write  my Lord keeper dismiss the bill and decree the trustee to convey to the  defendant accord to the will of sir Samuel starling they have a cross bill for  that purpose