ambler case gibson and other against rogers and other gibson and other devise  of real and personal estate to trustee their executor administrator and assign  out of rend and profit to pay certain annuity and legacy hold a trust not a  chattel interest in the trustee lib Reg a foe nom Gibson v Lord Mountford S c  Ves Ves n in chancery June Mr shepherd of Exning in Cambridgeshire by will  give all his freehold leasehold copyhold estate and also his personal estate  to trustee to hold to they their executor administrator and assign in trust to  pay certain annuity and legacy out of the interest and produce out of the  interest and produce of his personal estate l r of his personal estate and in  case of want of sufficiency of personal estate then out of the rend and profit  of his say real estate and as for and concern all the rest residue and  remainder of his say real and personal estate of what nature or kind soever  after provision make for payment of the say annuity and legacy he give the  same to such child or child as his daughter Frances Gibson otherwise Frances  shepherd who be his natural daughter and to who he have give the great part of  his estate shall have of her body lawful beget whether male or female equal to  be divide between they share and share alike take upon they the name of  shepherd and then take notice that he have make no provision for the disposal  of the rest residue and remainder of his say real and personal estate in case  his say daughter Frances Gibson common call Frances shepherd shall die without  issue of her body lawful to be beget then he give the same after payment of  the say annuity and legacy unto Christopher Jefferson and Joseph pike equal to  be divide between they share and share alike they take the name of shepherd by  a codicil September he revoke the bequest to Jefferson and declare that he  shall have no benefit from the residue of his estate and devise the same to  Samuel shepherd and the say Joseph pike equal to be divide between they for  their life and direct that the annuity as they shall fall in shall go back to  the representative of his real and personal estate and be equal divide between  the say Samuel shepherd and Joseph pike ambler provide his say daughter shall  die leave no issue of her body lawful beget but in case his say daughter shall  leave at her death any child or child then such annuity as shall fall in shall  be divide among such child or go to such only child and his will be and he  desire that the say codicil shall be and be adjudge to be part and parcel of  his last will and testament note on that march he make a second codicil revoke  two of the legacy give by his will it do not appear in lib Reg whether either  of the codicil be attest the same remark be however applicable to the will  there be no mention of attestation in either case original bill to establish  the will and performance of the trust cross bill by Roger as heir at law for a  account of real estate not devise three question saint whether all the  testator copyhold pass by his will d whether by the devise of all the rest  residue and remainder of his real and personal estate the intermediate profit  till a child be bear of Frances Gibson pass by the will or go to the heir at  law as undisposed of d whether the codicil be such a confirmation of the will  as to pass land purchase after the make of the will Lord Hardwicke c after  argument at bar to the saint question I be of opinion all the copyhold land  that have be surrender by the testator to the use of his will and also all  those of which the legal estate be in trustee in trust for he pass by the will  in the latter case a surrender be not necessary nor indeed can the testator  have surrender because the legal estate be not in he d question it be right  observe that a heir at law do not claim by the intention of the testator but  against it and can be disinherit but by express word or necessary implication  I be of opinion here be such necessary implication it will be hard to say the  heir at ambler law shall have any thing when the testator have express give  away all the rest residue and remainder Hawkins v chapel atk for if he fakes  at all it must be that which be not dispose of it be object that the trustee  have only a chattel interest as in   light a and if so the devise over be  contingent can be support by a chattel interest it be ambler er p certain if  the trustee take but a chattel interest the devise over will not be good as a  contingent remainder cro Elizabeth win it may in such case be a doubt whether  it will not be good as a executory devise but I be of opinion it be a trust of  the inheritance and not a chattel interest and although the word be to their  executor administrator and assign and if it have be a trust of the real estate  only may have be consider to convey a chattel interest only yet as it be a  trust as well of the personal as of the real estate the word executor and  administrator be applicable to the personal and the word assign to the real  estate objection the trust be only until what time to satisfy particular  purpose and then be at a end and the legal estate will devolve on the heir at  law and that it will be hard to consider he as trustee for the person in  remainder as to the intermediate profit but the word heir be not necessary  even at law to give a inheritance to trustee if a less estate will not be  sufficient to answer the purpose of the trust and so it be determine in shaw v  weigh and I be of opinion it be a trust throughout for if the personal estate  be not sufficient to satisfy the legacy the real estate must be sell for that  purpose and that may possible happen to be the case for several of the legacy  be to be pay within one year and which can be out of the annual rend such sale  be direct by the word rend and profit for whenever those word stand alone  without the word annual or mortgage or lease or some word of restriction to  confine the sense of the precede word to annual profit they be consider as  include the land itself by devise of rend add profit the land will pass at law  and in order to make such sale of the inheritance the trustee must have the  inheritance in they and though only part of the inheritance need be sell yet  this court will not make fraction and consider they as trustee for only part  of the inheritance but of the whole such a possibility be sufficient to  consider they as trustee ambler throughout and whoever will be entitle on the  contingency must have a conveyance of the legal estate from they by the devise  of all the rest residue and remainder the testator have strong show his  intention in the case of Stevens v Stevens can t Talb the court of king bench  certify the several contingent devise to be good as executory devise and that  the intermediate profit shall not go to the heir at law but to the residuary  devisee the only difference be in that case the accumulative profit will go to  one be which carry a strong presumption of a man intention than in the present  case where they be to one not in be but consider that the sole view of the  testator in the present case be to give a large estate to plaintiff child and  to perpetuate his family through her that difference be not so great another  evidence of intention arise from that part of the will where the testator  direct that when any of the annuitant die so much of the rend and profit as be  to satisfy those annuity so fall in be to go back into the residuum it be  admit the residue of the personal estate passes by the will immediate upon the  trust be execute Bland v Bland Feb be cite cite bro c c in Roger v Roger p wms  it be hold that where both the real and personal estate be comprehend in the  sweep clause if the rest of the one will pass by the word it be evidence of  the intention that the other shall too the residuary devise be of all the rest  c after provision make for payment of the annuity and legacy if it have be  after payment there have be some strong colour of objection the reason that  prevail in Hopkins v Hopkins Ves can t Talb atk west Rep be the testator  direct the profit to accumulate after the birth of a son till twentyone have  fix the terminus a quo the court hold they shall not accumulate till the birth  of a son another thing which distinguish that case from the present it be not  a devise of the residue note and his lordship do declare that no part of the  surplus rend and profit of the say testator real trust estate be under the  circumstance of this case descend to or belong to the say Elizabeth Roger the  heir at law of the say testator but that the same be subject to the trust and  contingency of the say testator will lib Reg see Genery v Fitzgerald Jacob  Popham v lady Aylesbury ante as to the d question it be true observe by the  defendant counsel that the codicil take no notice of the real estate but only  alter two legacy and then conclude I desire this codicil may be add to my will  it appear to be attest accord ambler er p to the statute of fraud and perjury  ambler Lord falkland case and the case of Cholmondeley v Cholmondeley Ves cite  hear at the roll on the saint January be consider as authority that a codicil  of personal legacy only will not amount to a republication of a will of real  estate though proper attest and also the obiter opinion of sir John strange  the present master of the roll in potter v potter Ves m be mention v but this  be contrary to the determination of the house of lord in the case of Acherley  v Vernon bro p c and Edward by the minutebook it appear that the judge be ask  their opinion and they think that the codicil which have revoke part of the  former devise and thereby devise some afterpurchased land be to be consider as  incorporate in the will and consequent a confirmation of it their resolution  occasion a perpetual injunction to the heir at law from proceed to try his  title at law it may be say that this way of reason will make every codicil  proper attest a republication of the will and so it do it be admit that if the  testator have express himself in the word I confirm or republish my will it  have be sufficient but it be say there be no such word here and that the real  estate be not in the contemplation of the testator at the time of his make the  codicil but in my opinion there be no great difference between the word use in  this case and those it be admit will be a confirmation however I will take  time to consider of this point and will look into the case of Lord Falkland Eq  can Abr and of Cholmondeley v Cholmondeley the last of which be hear by  consent afterward on the that June the counsel inform the court that upon  search the paper of Mr shepherd vide shepherd v Ingram July direct the  application of the rend and profit among the child of Frances Gibson otherwise  shepherd it be discover that he have article for sale of the afterpurchased  land which a end to the d question post note on the d of may on a appeal by  the devisees of Roger the heir at law from the determination upon the d  question the decree be affirm by Lord Camden c who say it be a very clear case  after recite that whereas he have give and devise all the residue and  remainder of his real and personal estate after provision be make for the  payment of the several legacy and annuity therein give in case his say  daughter shall die without issue of the body lawful beget unto Jefferson and  pike he do thereby revoke c Tuffnell v page atk S c barn car v ellison atk  Allen v Poulton Ves by Geo c the necessity of a surrender to the use of a will  be remove see Hussey v grills post the decree declare that the copyhold land  whereof he be seize of the legal estate and which he surrender to the use of  his will and also all such copyhold land the legal estate whereof be vest in  trustee though not surrender to the use of his will pass by his will but that  such copyhold land whereof he be seize of the legal estate and do not  surrender to the use of his will descend to the say Elizabeth Roger the  plaintiff in the cross cause the say testator heir at law shaw v weigh Eq can  Abr S c Mod Fitzherbert bagshaw v Spencer Ves atk villiers v villiers atk but  where the purpose of the trust may be answer by a less estate no great one  shall pass to the trustee by implication do v Simpson east do v Nicholls b and  c see Allan v backhouse Ves b where all the previous authority be consider see  Bootle v Blundell Meriv green v belcher atk west bell v Mitchelson belt supply  to Ves see attorneygeneral v Lord Weymouth ante p see also lingan v Foley Ch  can backhouse v Middleton Ch can ivy v Gilbert pre Ch S c p wms banns v Dixon  Ves a indefinite gift of the dividend of stock give the stock itself page v  Leapingwell Ves so decide in the case of barn v crow Ves jun S c bro c c and  therefore where the will contain a general devise of land those purchase in  the interval between the date of the will and codicil pass see barn v crow ub  sup piggot v Waller Ves Rowley v Eyton mere so also do land contract for in  that interval broom v monk Ves Hulme ambler er p v Heygate mere and the effect  will be the same though the codicil relate only to personal estate piggot v  Waller Ves see Jackson v Hutlock post attorneygeneral v Downing post cart v  cart ante