case Samuel newcomen and mary his wife versus edward Barkham and sir William  MASSENBURGH all edward Barkham versus newcomen ux sir William MASSENBURGH  Dimock WALPOOL and John WALPOOL Lord chancellor Feb pre Ch nomin brown v  Barkham Eq can ab pl S c a devise land in trust after debt pay to convey the  premise to the heir male of the body of b the testator great grandfather c be  the heir male of the body of b but not heir general there be a daughter of a  elder brother who be heir general decree trustee to convey to c as c will be  well entitle to take as heir male by descent so he be sufficient describe to  take by purchase sir Edward Barkham have no issue Jan make his will and devise  his real estate to sir William Massenburgh and Walpool and their heir in trust  by rend and profit and sale of such part or of so much as shall be necessary  to raise money for payment of his debt and legacy and to convey the rest and  residue of all his land tenement and hereditament which shall remain unsold to  his cousin Robert Barkham and the heir male of his body and for want Vernon  chancery case of such heir male then to the heir male of the body of sir  Robert Barkham his great grandfather and for want of such heir male to his own  right heir for ever and direct that the overplus of the money shall be pay to  his cousin Robert Barkham or to such heir male as shall be entitle to the  residue of his manor and hereditament by his will and thereby give to his  sister newcomen to be put out at interest during her life she to receive the  interest and after her death to her child sir Edward Barkham die in about a  year after and Robert Barkham die soon after in Spain without issue the  plaintiff Edward Barkham who be the brother of the say Robert Barkham be then  in the east Indies now bring his bill as be the heir male of the body of sir  Robert Barkham the testator great grandfather against the trustee and mrs  newcomen to have a conveyance of the TrustEstate and mrs Newcomens bill be  that the trustee may account and convey to her as be the only sister and  heiress of the testator the question be to who the trustee shall convey  whether to the plaintiff Edward Barkham as the person describe and intend to  take by the will be the heir male of the body of sir Robert Barkham the  testator great grandfather or to mrs newcomen the testator sister and heiress  at law who insist that although the plaintiff Edward Barkham be heir male of  the body of sir Robert Barkham and may have take as such by descent or by way  of limitation yet be to take by way of purchase he ought to be as well heir  general as heir male of the body and ought to be complete heir at law to sir  Robert Barkham Lord chancellor the meaning and intention of the testator be so  very plain and obvious that it become a question only by Vernon chancery case  the artificial reason of the law but not a doubt to any man of sense and right  reason if that be to be the rule and it be fit therefore to consider how far  this court be hinder from decree accord to the intent and meaning of the  testator agreeable to common sense and right reason what have be object be  that it have be adjudge and settle that he that will take under the  description of heir by way of purchase must be a complete heir or in other  word heir general as well as heir special and that it be a maxim and rule in  law quod non be hres to live but neither that maxim nor any of the authority  build upon it will affect this case for here first the ancestor be dead which  free we from the authority of arc she case in   Rep that case go no further  than that a man shall not take as heir in the lifetime of the ancestor non be  hres to live but in this case the ancestor be dead and Edward Barkham be the  heir male of his body all the word of the definition of the person intend to  take exact concur and be verify in he even in a legal sense and no argument be  to be draw from case where the word do not suit the devisee and therefore the  case cite of Challener and bowyer leo as a authority by Newcomens counsel may  be lie aside the devise there be to the heir of the body of the son who be  then live and he can not have a heir Vernon chancery case er p in his lifetime  and so likewise the case in dyer there the ancestor be live but it be there  imply that the son may have take if the ancestor have be dead and in that case  it will be hard to say that the son of the second marriage may not take as  heir of the body of the husband and his second wife because he be not heir  general to they both which he can not be if either the husband by a former  wife or the wife by a former husband have happen to have have issue a son in  the case of Etterick and sterling pre Vernon chancery case Charles he be not  their heir male in any legal sense whatsoever and can only say he be a male  and it be to be observe that be upon a deed and it may be admit that the word  heir male without more will not carry it in a descent or by way of limitation  if he be not also heir but do hold that he may take as heir male of the body  of a person decease although he be not heir general and as the intent and  meaning of the testator be evident as to the person he design to succeed to  his estate so I think it ought to obtain for first it be a know principle in  law that a person be allow to take as well by a description as by a Christian  or surname nay it have be carry further even to pass by mistake or untruth in  the description as where the Christian name be mistake or the like so   Litt a  Beaumont v fall p wms and case collect in the note there in the case of a  descent the heir male of the body take only as a person describe and if a  person may take by a description of the person then it certain follow he must  take when the description be true and be perfect and complete in the present  case the description be not only true but be certain be perfect and complete  and that also in a legal sense and in term of art it must be admit he be true  and certain describe otherwise the same description of the same person will  not entitle he to take by way of descent or limitation and yet the reason  which the authority cite seem to have go upon be that these word be not true  of he that they be not entire verify because although he be heir male of the  body yet he be not heir general or complete heir I may say this be a unfair  and disingenuous exposition if a man devise to his heir in borough English or  Vernon chancery case to his heir in gavelkind shall not such special heir take  although he be not heir general at commonlaw so that the objection come to  this that here be word proper to limit and restrain the sense and to  distinguish the person from the heir general and yet the person so describe or  distinguish shall not take as heir special because he be not the heir general  whereas the heir general be neither the person intend nor describe as to the  certainty of the description he be the only person live that can be call heir  male of the body of sir Edward Barkham and be describe by proper and artful  word and not a word redundant and be not only true and certain but artful and  correct and admit not or leaves room for so much as a cavil and there be the  same reason that the heir male of the body may take by purchase as it be admit  he may by way of descent since in both case he take by description of the  person intend to take but a distinction have be make that the special heir of  the body who take by descent be within the statute de gift but that statute  extend not to such as take by purchase and that be true in fact vide Goodright  v wright p wms but it do not follow but the same description may as well  ascertain the person that be to take by purchase as it will when he be to take  by way of descent or limitation and beside the statute de gift create no new  estate or limitation but only secure and preserve such estate to the heir  special as be before at commonlaw from be liable to alienation in such manner  as they be at law and no true reason can be give why the same description may  not ascertain the person intend to take by purchase as well as to entitle he  to take by descent if such distinction be to be admit and to become rule in  law the knowledge of the commonlaw will become rather a matter of memory than  of judgement and reason Vernon chancery case I do admit that the Lord Hobart  in the case cite hob in his argument to maintain the point there adjudge say  obiter that where the heir male or female of the body be to take by way of  purchase he must be heir general and give as a reason for it that he be not  within the statute de gift but that be no good reason and the rather because  such special heir be well know at commonlaw in shelly case   Rep b the  question there be upon word of limitation and whether they be good word of  purchase can not come in question but what be there say that they will not be  good word of purchase be deliver only as the Lord coke opinion Vernon chancery  case er p in argue for his client and not so much as take notice of by the  court nor be it the point in question yet he transcribe it into the book of  coke on Littleton b the authority there cite in the margin do none of they  come up to this case as h Farringtons case there the limitation be to the heir  male and not to the heir male of the body those word of the body want and  beside it appear by the book that the person be not in be when he ought to  have take and so likewise the case of h bro abridgment there a case put of a  limitation by a deed to a man and the heir female of his body and although he  have a son yet the daughter take and that of dyer a appear to be a imperfect  sketch of Shelleys case it be general find that in case obiter the point  adjudge be not to be much rely on and when sift the law will be find  consistent with itself and the adjudge case reconcile the case of James and  Richardson in pollexfen and the same case in second Ventris Le v S g in other  name the devise to the heir male of r S now live adjudge a good devise that be  a much strong case than the present for Vernon chancery case there the devisee  be neither heir general nor heir special the ancestor be live and a maxim of  the law dispense with non be hres to live and pollexfen in that case lie it  down as a principle that if well describe he ought to take and the case of  long and Beaumont p win the decree here reverse in dom proc that may bro p c p  in the house of lord a devise to the heir male of Elizabeth long lawful beget  and for want of such heir to his own right heir there hold good although not  to heir of the body those word of her body want yet the description supply and  make good by other word tantamount in the case of pibus and Mitford vent where  in the limitation in a deed Mitford covenant to stand seize to the use of his  heir male beget or to be beget on the body of his second wife although a son  by the first wife there hold good evening deed and it be strong in the case of  a will and although the other judge give it a nice turn that the heir take by  descent and not by purchase by say Mitford take a estate for life by  implication yet the Lord hale say he take by purchase and by description and  hold he be well describe and say it be absurd to say he can not take because  he be not heir general when he be describe as a heir special to distinguish he  from the heir general and the Lord hale there say he find not any case adjudge  contrary to that opinion and wile as convince by his argument declare he be of  the same opinion so that the opinion of hale and wile may outweigh by way of  authority the opinion of coke obiter in Shelleys case and that of Hobart in  Counden and clarke their opinion not be upon the point adjudge and beside  right reason and common sense speak against those obiter opinion and the case  cite by the Lord hale in the case of pibus and Mitford come very near the  present case a man have two daughter and Vernon chancery case a nephew give  his daughter pound and give the land to his nephew by the name of his heir  male provide if his daughter trouble the heir the devise of the pound to be  void and adjudge good in our case the testator take notice of the sister who  be his heir and give her and then devise to the heir male of his great  grandfather and the case Trin Ann Regin common banc rot where a devise to his  heir male although neither heir of the body nor heir at law hold good because  by other word in the will it appear the testator do not intend he shall be  hinder from take by his heir female and therefore upon the whole matter decree  the devise to Mr Barkham be good and a conveyance to be make to he he have not  only the intention of the testator and the strength of reason on his side but  also the strong authority and direct the conveyance to be make to Edward  Barkham and to his heir male of the body of sir Edward the great grandfather  it seem unnecessary to lengthen a note on this case by reference to other case  on the subject after the elaborate investigation of it by Mr Hargrave in his  note to   Litt b it will be proper therefore only to state that the case of  that Nov on bill of review mention in that note in which Lord cowpers decree  as above be affirm be the case Newcoman v Bethlehem hospital Amb Rep and to  refer the reader to the report of the principal case in stram Rep p and Mr  Nolans note p there and see Cholmondeley v Clinton I W et seq when a question  arise how a trust ought to be execute by a conveyance there be no better rule  than to observe and follow what have be do at law in the execute of condition  that be matter executory and to be perform so far as the case will admit of  Vernon chancery case er p