bourgogne and hatton December where a testator shall be suppose to intend to  dispose of all his land except certain land particular mention where the law  will allow of word to be transpose in construe a will sir Thomas Wendy be  seize of several estate in the county of Cambridge in make his will to the  follow effect the will begin with declare that it be the testator intention to  dispose of all his worldly estate the testator then recite that he stand  indebt indivers sum of money to the amount of pound and thereupon he declare  that all his land except his manor of Wendy and his land lie therein and his  manor of Haslingfeild shall stand Chargeable in the first place for the  payment of those debt and for that purpose the will follow to this effect I  give and devise to three trustee and their heir particular name they all my  land except my manor of Wendy and my land therein lie and my manor of  Haslingfeild and my manor and farm of Haukston which I give to my dear wife  for four year in trust for the payment of my debt as aforesaid the remainder  to Thomas steward for life the remainder to his wife for life the remainder to  my trustee to preserve contingent remainder the remainder to his first and  other son in tail male the remainder as to one moiety of the say estate to  lady Kemp for her life and as to the other moiety to Susan steward for her  life the remainder to sir Roger Burgoyne and the heir male of his body the  remainder to my own right heir for ever and as to my manor of Wendy and my  land therein lie together with my manor of Haslingfeild I devise the same to  Barnardiston er p Thomas steward and the heir male of his body Thomas steward  be heir at law to the testator and lady Kemp and Susan steward be sister to  Thomas steward Barnardiston the testator die in the debt be pay off in three  year and afterward in the trustee mention in the will convey the legal estate  to the party that be entitle to the equitable interest with this difference  only that sir John more be make a trustee to preserve the contingent remainder  and the remainder to sir Roger Burgoyne be limit general to he in fee without  limit any remainder over in Francis Hatton become a purchaser of the Haukston  estate of Mr steward and the conveyance be make in this manner lady Kemp and  Susan steward join in this conveyance with Mr steward and his wife the  conveyance be make to trustee it be in order to make a marriagesettlement and  at the end of the deed sir John more who be likewise make a party to it  declare that he confirm the same to the trustee to have and to hold to they  for the purpose mention in the settlement a fine be likewise levy of the  premise accord under this deed Francis Hatton enter upon the premise in that  year and the estate be enjoy by the defendant under that settlement to the  present time Mr steward die and afterward his wife die in the plaintiff sir  Roger Burgoyne who be grandson to sir Roger mention in the will come of age in  April he thereupon immediate make a entry upon the Haukston estate and  afterward in the same year bring his bill against the defendant for a account  of the rend and profit of this estate the deed of whereby the legal estate be  convey in the premise not be at that time any way know to he in this deed be  send to he by one Mr Lisle who purchase another estate of he and thereupon in  easter term the plaintiff bring a ejectment Barnardiston to recover this  estate at law upon that the defendant move that the plaintiff may make his  election whether he will proceed at law or in this court and he make his  election to proceed here the attorneygeneral argue as counsel for the  defendant and say that he apprehend that even suppose the plaintiff shall be  think to have a right in this case that still he have take a improper remedy  by come into this court he do ready agree to the case out of vern which have  be cite by the other side but submit it that it do not come up to the present  case for that case be no more than to show that a infant may bring a bill of  account for rend and profit against a intruder but he conceive that the  present case be distinguishable from that by reason that here the defendant  enjoy the estate under a settlement which at least be a strong colour of Title  and this will have be a objection if the plaintiff have even be a infant at  the time of bring his bill but he be of full age at that time and he know no  case that such a person can bring a bill of this sort by reason that part of  the profit have be receive during his infancy he observe likewise that the  plaintiff remedy be still the more improper on account of the deed of by that  deed the plaintiff have a Title at law if he have any Title and therefore his  remedy at law shall have be take but even suppose that there have be some  colour for the plaintiff come into this court at first yet nothing can be say  for his make his election to proceed here after the deed of be send to he the  defendant too he observe be clear a purchaser and he apprehend a purchaser  without notice but he say that he conceive the plaintiff have no right at all  by reason that under the will of sir Thomas Wendy he do not apprehend that the  land in question be devise any long than mere for the term of four year he say  he shall not contend but they be charge for payment Barnardiston of debt and  the case of the earl of Warrington be indeed strong for that purpose to show  that even less word than these will serve to make such a charge but still he  conceive that when that purpose be answer which be do in about three year the  debt be pay off in that time there be no reason to say that the land be  devisedaway any far the exception in the devise clause plain extend to exempt  these land out of the devise unless for that term of four year and if this be  so Mr steward be entitle to they as heir at law Mr brown argue on the same  side and for authority cite vern and Mr clark on the same side cite bridge Rep  and say that the case mention by Mr brown out of vern be report in another  part of that book and likewise in I lev Barnardiston er p Lord chancellor say  he will in the first place consider whether the plaintiff have any right in  the present case and in the next place whether he have take a proper remedy  with regard to the first point it seem to he that the plaintiff have a strong  probability of have a right and that be as much as be necessary for he to  declare consider the direction which he shall give the testator in the  beginning of his will declare his mind to be to dispose of all his worldly  estate he then recite the debt that he owe and declare that all his land  except the manor of Wendy and his land lie therein and his manor of  Haslingfeild shall stand Chargeable in the first place f r the payment of  those debt so that in declare his intention it be extreme plain that he design  to dispose of all his land except his Wendy estate and his manor of  Haslingfeild for the payment of his debt in the a first place he then go to  execute his intention and for that purpose devise to three trustee  Barnardiston and their heir particular name they all his land except his manor  of Wendy and his land therein lie and his manor of Haslingfeild and his manor  and farm of Haukston which he give to his wife for four year in trust for the  payment of his debt as aforesaid and then limit the several remainder over he  say it seem to he that the intention of this devise clause be that all his  land shall be dispose of in the manner which he have mention except the Wendy  estate and the manor Haslingfeild and the term of four year give to his wife  in the manor and farm of Haukston and this be the more plain if the word be a  little transpose by read they in this manner my manor and farm oh f Haukston  for four year which I give to my dear wife and such transposition of word have  be allow to be make for which purpose be cite Hobart and salk in this last  case indeed Lord chief justice holt differ from the three judge that be of  that opinion but it appear by a note which he have take by my Lord Raymond  that the judgement be affirm in the exchequerchamber accord to the opinion of  the three other judge and that the same be afterward do on a Writ of error in  the house of lord his lordship say he will now consider the objection that  have be make to the remedy which the plaintiff have take by fill his bill in  the first place and afterward make his election to proceed in this court he do  own that he be not well satisfy that the plaintiff be a infant while part of  these profit be receive will have be a sufficient ground for he to have bring  this bill for a account of the rend and profit he say it be very true that a  infant may bring such a bill against a seize and that be in conformity to the  rule of law in the like case where a infant may bring a action of account  against the person that seize he and charge he as a receiver he say it be true  likewise that former it have be hold in this court that though the person  enter upon the infant have a colour of Title as under a settlement a bill of  Barnardiston this kind will lie for a infant in that case but for his part he  own he have a doubt whether of late a bill of this sort have be hold to lie in  that case and he be unwilling to determine that point here for he think there  be no occasion for it but the matter which he find his opinion upon be that  the plaintiff be proper in come into this court at first by reason that the  deed of be not then know to he and therefore he can not tell but that his  Title be mere a equitable interest and have his Title be such a one the  defendant can not have bar he on account of his be a purchaser from Mr steward  for that it appear on the face of the deed of that he have the clear notice  imaginable that Mr steward take only under the will of sir Thomas Wendy the  two sister of Mr steward join in the conveyance with he which there will have  be no occasion for have Mr steward claim as heir at law beside sir John wood  be party to the conveyance which there will have be no occasion for but only  upon that account but then it have be object to the plaintiff that he be wrong  in make his election to proceed here after the deed of be make know to he but  still his lordship opinion be that the make that election ought not to  prejudice the plaintiff neither he say it be very true that the plaintiff come  of age in April and though he make his entry immediate after yet that entry  can not serve he by reason that he do not bring his ejectment within a year  after as the statute for the amendment of the law require it have be object  that he shall have proceed in the ejectment which be deliver in easter term  but his lordship say he do not well know whether the five year be not then  pass since the time of his come of age and consequent whether at law he will  not have be entire bar Barnardiston er p at least this be such a doubtful  matter as make it much more prudent for the plaintiff to make his election to  proceed here and therefore his make such election shall not prejudice  Barnardiston he and there be the strong reason for this because the deed of be  not strict a conveyance of the legal estate accord to the will for by the deed  a remainder in fee be limit to the plaintiff ancestor whereas by the will he  be only entitle to a remainder in tail and this he say in reality be not so  favourable a conveyance to the plaintiff as it will have be if the remainder  have be limit in tail for then he will not have be subject to the debt of his  ancestor he come in per form gift whereas in the other case he will for these  reason his lordship say that he will retain the bill for a year and will give  the plaintiff liberty to try his Title at law in the mean time and will not  suffer the defendant to take any advantage at the trial of the plaintiff  nonclaim or his not bring his ejectment in due time and the court he say have  in other case give the like sort of direction where for particular reason they  have not permitteda defendant to take advantage of the statute of limitation  when there have be a suit depend in this court relate to that matter and so  his lordship be please to order accord June since the Cause come last on  before the court sir Roger Burgoyne bring his ejectment for the manor of  Haukston beforementioned which action come to be try before Lord chief justice  will at the assize a order of nisi be enter into by consent that the plaintiff  shall have a verdict but that that verdict shall only stand as a security to  he and that the matter of law in that Cause arise upon the word of sir though  Wendis will shall be refer to the opinion of the chief justice at his chamber  afterward he declare his opinion to be that the manor and farm of Haukston be  not total except out of the devise to the trustee but for Barnardiston four  year only and thereupon sir Roger Burgoyne enter up his judgement in June the  defendant Mr Hatton file his cross bill against the plaintiff and in this  cross Cause the fact appear to be to the follow effect in sir though Wendy by  his will beforementioned devise all his land except his manor of Wendy and his  land lie therein and his manor of haslingfield to certain trustee and their  heir in trust for payment of his debt and legacy which debt amount to pound  then come the follow clause item whereas my hope be that by the prudence and  care of he or they that shall succeed I in the enjoyment of my estate together  with the assistance of my say trustee the estate may be keep entire and no  part of it absolute sell therefore m desire be that my say trustee do not  during the first three year after my decease sell or cause to be sell any part  of my land and premise but only take receive and enjoy the rend and profit  thereof and employ the same for and towards the payment of my debt funeral and  legacy and in case the person or person who shall be entitle to the trust of  the premise shall at any time within the space of three year next after my  decease pay and discharge all my debt funeral expense and legacy or so much  thereof which will make up the sum and sum of money which I owe and the charge  of my funeral and the sum and sum of money which I give and bequeathe by way  of legacy then and in such case the further trust hereof be that my trustee  and the survivor and survivor of they shall not make any sale of any of the  land and premise but in case the person or person who shall be entitle to the  premise shall not discharge my debt within the time then my will and meaning  be that my trustee and the survivor or survivor of they shall make sale of so  much and Barnardiston such part of my land as they shall think fit for the  full discharge of my debt item I do hereby declare that if my trustee shall  execute any estate to my nephew or niece pursuant to their trust that they  cause such clause to be insert for preserve the contingent remainder as be  usual in such case and by the same will sir Thomas Wendy give two legacy of  pound each to the lady Kemp and Sarah steward the sister of Mr steward soon  after make the will the testator die upon his death Mr steward who be his  nephew and heir at law and likewise devisee as appear by the former state of  the case enter into possession upon the manor of Haukston together with the  other land particular devise to they in he intermarry with Lucy Hatton and  thereupon by deed of the that of September in that same year in per  Barnardiston er p formance of the trust repose in they and for execute the  estate accord to the trust thereof and for and in consideration of a  marriageportion of pound the trustee convey the Haukston estate among other  land to steward for life in strict settlement and for default of issue male of  Thomas steward lady Kemp and Sarah steward all and singular the manor and  premise and particular the manor of Haukston be limit to sir Roger Burgoyne  his heir and assign for ever accord to the use and limitation in the will and  settlement in July sir Edward Atkins writ a letter to sir Roger Burgoyne the  defendant grandfather wherein he tell he that the manor of Haukston ought to  have come to steward and his heir and that it be a mistake to be limit by the  will as it do for which reason he desire he to join with steward in the sale  of it about the November follow a case be state for the opinion of sir Francis  Pemberton and after recite Barnardiston the material clause in the will of sir  Thomas Wendy the fact be state in that case in the manner follow sir t W die  without issue his nephew p S the next man in remainder upon his marriage and  before any land sell pay all the debt funeral charge and legacy and the  trustee settle the manor of Haselingfeild and Haukston pursuant to the  direction in the will that be to say to himself for life the remainder to  trustee for his life and to son in tail male then to his first niece in like  manner and afterward to the second niece in like manner then for default of  such issue to sir r b and the heir male of his body with the remainder over t  S nor either of the two niece have or be ever like to have any issue male t S  press sir r b to join with he in sell the Haukston manor pretend it be settle  with Haselingfeild by mistake and ought not to be settle though he that draw  the will draw the settlement and be also one of the trustee that make the  settlement and a great lawyer this great lawyer be sir Edward Atkins  beforementioned and the opinion that sir Francis Pemberton give be that the  manor of Haukston pass by the will of sir Thomas Wendy by deed bear date the d  of Nov make between sir John more and Lucy steward wife of though steward of  the first part sir John brodrick sir Robert Griffey and Edward Nicholas of the  second part Anthony bowyer and John Nicholas of the three part Frances  Nicholas widow and Oliver Nicholas of the four part and Francis Hatton old son  and heir apparent of Lucy lews and Frances Nicholas the young sole daughter of  Frances Nicholas the elder of the five part recite that a marriage be then  intend to he have between Francis Hatton and Frances Nicholas the young and  that pound part of the marriageportion of Frances Nicholas be pay or secure to  sir John Nicholas sir John brodrick sir Robert Griffey and Edward Nicholas it  be thereby agree that the shall be lie out in a purchase of Barnardiston land  of inheritance to be settle to the use of Francis Hatton for life remainder to  trustee to preserve contingent remainder with remainder over for the benefit  of young child of the marriage with remainder to the right heir of Thomas  Hatton and by the same indenture the sum of pound of the separate estate of  Lucy lews be agree to be lie out in land for the benefit of Francis Hatton and  Frances Nicholas and their issue in manner therein mention and about the same  time a bill be bring by sir John brodrick sir Robert Griffey Edward Nicholas  sir Robert wright sir John Nicholas and other creditor of steward against  steward and his wife and against sir Edward Atkins and sir John more set forth  that steward be indebt to the plaintiff S sir Robert wright dr Brady and Mr  Coleborne and that he do for discharge his debt by article under hand and seal  agree with these plaintiff to sell to they for pound a estate in fee in the  manor of Haukston and that they provide their money but be since inform that  steward can not sell such estate for that sir though Wendy who be seize of the  premise do by his will in write devise the same with other land to dame  lettuce Wendy the defendant sir Edward Atkins and one Richard winch and their  heir upon trust for payment of his debt and legacy and afterward to limit the  same to the defendant steward for life only with contingent remainder but with  power for steward to settle the same in jointure upon any wife and that  steward upon the marriage with Lucy his wife do limit the same with other land  to her in jointure that the trustee in the will of sir though Wendy do accord  convey the premise to sir John more to the use of steward for life and then to  Lucy for her jointure whereby steward be disable to perform the agreement  Barnardiston er p to the prejudice as well of sir John Nicholas sir John  Broderick sir Robert Griffey and Edward Nicholas as of the other plaintiff the  creditor who be in danger of lose Barnardiston their debt except the agreement  go on and therefore the end of the bill be to have a execution of the  agreement steward by his answer confess the agreement and set forth that sir  Thomas Wendy b his will in write direct all his manor and land in the county  of Cambridge except the manor and farm of Haukston and some other land to such  trustee as in the bill be set forth for payment of his debt and that the  defendant not think the manor and farm be except as it real be do upon his  marriage accord to the power mention in the will limit the same unto Lucy his  wife in jointure as suppose the same be convey to the trustee by the will but  that he be since advice inasmuch as that manor be except in the will and he be  heir at law to sir Thomas Wendy he have sufficient power to perform the  agreement and that he and his wife have levy a fine of the premise to sir John  Nicholas in pursuance of the agreement sir Edward atkins by his answer confess  the manor be except out of the devise to he and the other trustee but that  they on steward marriage do convey the same as before set forth and sir John  more by his answer set forth that his name be use as a trustee for Lucy on her  marriage but that her friend particular her mother approve of the sale he be  Willing to join therein be indemnified by the court whereupon in February it  be order that the manor of Haukston shall be sell to the plaintiff and that  the defendant the trustee particular sir John more shall join in the sale and  be indemnifyd and thereupon by deed date the that of November make between the  beforenamed Thomas steward and Lucy his wife of the first part sir John  Nicholas sir John Broderick sir Robert Griffey and Edward Nicholas of the  second part sir Robert wright and Elizabeth his wife and Sarah steward of the  three par sir John more of the four part and Francis Hatton of the five part  recite in part the first mention indenture quinquepartite and that with the  approbation Barnardiston of Francis Hatton the trustee have agree with Thomas  steward to pay he pound part of the pound for the purchase of the manor of  Haukston and other land it be witness that Thomas steward and Lucy his wife  for and in consideration of the pound to he pay by sir John Nicholas sir John  Broderick sir Robert Griffey and Edward Nicholas with the approbation of  Thomas Hatton do grant unto sir John Broderick sir Robert Griffey and Edward  Nicholas the manor of Haukston and all and singular the land and tenement  therein particular mention and describe to hold to sir John Nicholas and other  trustee their heir and assign to the several use only and subject to the  proviso declaration and agreement in the first mention indenture  quinquepartite declare concern the land which shall be purchase with the pound  as in the lastmentioned indenture bear date the that day of November and  contain a covenant from Thomas steward for quiet enjoyment from any person  claim under he Lucy his wife or sir Thomas Wendy and also a covenant for levy  a fine by Thomas steward sir Robert wright and Elizabeth his wife and Sarah  steward unto sir John Nicholas and the other trustee of the manor and premise  appear which fine be levy accord and by the same indenture sir John more do  grant and confirm the manor unto sir John Nicholas and other trustee to the  use abovementioned under this conveyance Thomas Hatton claim and thereupon the  cross bill be bring by Thomas Hatton against sir Roger Burgoyne and against  Lisle who claim as a purchaser with notice under he insist that the land  devise by sir Thomas Wendis will in trust for the payment of his debt be not  above the value of pound per Ann and that in fact steward pay a great part of  those debt and legacy with his own money whereupon it pray that the plaintiff  in the cross Cause may stand in the place of steward and retain a satisfaction  out of the Haukston estate for the money that steward have so expend and at  the same time Barnardiston that this cross Cause be set down to be hear the  original Cause come on before the court likewise on the equity reserve Mr  archer argue on the part of the defendant in the cross Cause and for authority  cite Rep Lord chancellor say that since the time of fill the original bill a  cross bill have be file which occasion the principal difficulty in the present  case the point insist on by the cross bill be that the manor of Haukston be  part of the trust estate subject by the will of sir Thomas Wendy to the  payment of his debt it have be Barnardiston er p say that during the first  three year after the death of sir Thomas Wendy the trustee can only discharge  the debt by the annual rend and profit of the estate that those rend be by no  mean sufficient for that purpose that Mr steward pay they off with his wife be  portion within a year after the testator death that that appear by the state  of the fact in the case that have be mention it have be say that he thereby  become a creditor upon the estate to reimburse himself the money that he so  expend and that the plaintiff in the cross Cause have the same equity that  steward himself will have have but his lordship opinion be that the plaintiff  in the cross Cause be not entitle to the equity that he seek by his bill it be  indeed true that do it appear that steward will have have a equity to have  come upon this estate the plaintiff in the cross Cause will have have the same  but his lordship opinion be that steward himself have no such equity to  determine whether he have or not it be necessary to resort to the will of sir  Thomas Wendy to consider the trust arise under that will and the act that have  be do subsequent to it the will be in this manner it give the land in question  to trustee for the payment of his debt then follow the material clause on  which the present question depend item whereas my hope be that by the prudence  and care of Barnardiston he or they that shall succeed I in the enjoyment of  my estate together with the assistance of my say trustee the estate may be  keep entire and no part of it absolute sell therefore my desire be that my say  trustee do not during the first three year after my decease sell or cause to  be sell any part of my land and premise but only take receive and enjoy the  rend and profit thereof and employ the same for and towards the payment of my  debt funeral and legacy and in case the person or person who shall be entitle  to the trust of the premise shall at any time within the space of three year  next after my decease pay and discharge all my debt funeral expense and legacy  or so much thereof which with the rend and profit that m trustee shall in the  mean time receive will make up the sum and sum of money which I owe and the  charge of my funeral and the sum and sum of money which I give and bequeathe  by way of legacy then and in such case the far trust hereof be that my trustee  and the survivor and survivor of they shall not make any sale of any of the  land and premise but in case the person or person who shall be entitle to the  premise shall not discharge my debt within the time then my will and meaning  be that my trustee and the survivor or survivor of they shall make sale of so  much and such part of my land as they shall think fit for the full discharge  of my debt what be the construction of this clause in the will plain it be  that the trustee shall not sell the estate for the payment of the debt during  the space of three year and that during that time the person who be to succeed  in the estate be to have the election whether they will not discharge the debt  themselves in order to prevent the estate from be sell but not a word be say  that by pay they off they be to have a great interest than otherways they will  have be entitle to by pay they off they be indeed to secure their own interest  Barnardiston in the estate and that be all that they can do consider then what  it be that steward have do he meet with a fortune of pound within the three  year and there year after the testator death the trustee execute question  among other estate to Mr steward the performance of the trust repose in the  trustee and for execute the estate accord to the trust thereof and for and in  consideration of the marriageportion of pound upon these consideration the  trustee convey the legal estate to steward for life in strict settlement and  in default of such issue male of Thomas steward lady Kemp and Sarah steward  all and singular the manor land and premise and particular the manor of  Haukston be limit to sir Roger Burgoyne his heir and assignee for ever accord  to the use and limitation in the will and settlement steward have this  conveyance make to he do not sell the premise till and then the purchaser have  notice of the will of sir Thomas Wendy at the time this purchase be go on a  doubt arise whether Mr steward can make a good Title to this estate a case be  accord draw up for the opinion of counsel No imagination be at that time have  that steward have the equity which be now think of and the only question for  the opinion of the counsel be whether the Haukston estate be settle or not the  decree too that be make soon after plain show that the party have no  imagination of what be now contend for and that the only Barnardiston er p  thing that be aim at by that bill be the rectify the mistake in the settlement  on account of the intention of the will that this estate be not design to have  be include and as steward himself will not have have this right the plaintiff  in the cross Cause by no mean can and so his lordship be please to decree  accord