case Tollett against Tollett Lincoln inn hall that July one have two son  George and cook Tollett and a daughter devise several estate to his two son  and their issue with cross remainder and declare that if either of they shall  die without issue live at his death so that his estate shall come to his  brother the survive brother shall pay pound to his daughter within one year  after his brother death and charge the estate with it George die leave two son  afterward cook die without issue Q whether the pound lib Reg b foe a shall be  raise hold it shall George Tollett by will of that June after give several  legacy devise his capital message and land to trustee in trust after his death  to convey such part as he shall appropriate appoint to his young son cook  Tollett and in default of appointment such part as will be most convenient not  exceed pound ayear note separate from the rest of the estate design for his  old son George not exceed pound ayear for the benefit of such young son as he  shall direct and to convey all the rest of his estate to the use of George  Tollett his old son for ambler life with power to limit all such part of the  land as he shall think convenient on any woman he shall marry for her jointure  remainder to his first and other son in tail male remainder to cook Tollett  for life with like power of jointure and like remainder over to his first c  son remainder to the testator and his heir for ever provide that if the rest  of his personal estate exclusive of the specific legacy shall not be  sufficient to satisfy his debt the deficiency to be make good out of what be  devise to his young son and the plaintiff in equal proportion and the testator  declare that in case his son George to lift shall die without issue of his  body live at his death whereby all the estate intend for he shall come to his  brother cook Tollett then cook Tollett shall pay to plaintiff his daughter  within one year after his brother death if plaintiff shall be then live pound  and the estate so come to he on the death of his brother shall be chargedwith  payment of it and likewise in case cook Tollett shall happen to die without  issue live at his death the word live at his death not in l r whereby the  estate intend for he shall go to the old brother then George Tollett shall pay  plaintiff pound in manner and the estate so come to he to be charge with  payment of it George Tollett die leave two son afterward cook Tollett die  without issue query if the pound shall be raise Lord Hardwicke chancellor  after argument the plaintiff counsel have go on the case of condition as mark  v mark Prec Ch stram and rely on that case but this be not the case of a  condition but of a contingency in mark v mark it be a plain condition if  Nathaniel pay pound within three month c then I give my estate to Nathaniel  and his heir the court in ambler that case which be very learned argue both at  bar and bench consider that when a act be to be do by the ancestor and in  consequence he be to take a fee in such case the heir may perform the  condition court of law have aid the performance of condition by cypress but  all court must take contingency as they be express they can extend or construe  they cypress a great difference between a condition and a contingency if it  have be only in case he die without issue live at his death and no more the  plaintiff case have be much strong but it go on the estate intend for mark  shall go to the old brother saint question what estate the elder brother will  take and as the young brother may have make a jointure of the whole suppose he  have do so d question whether the elder brother will in such case have be  Chargeable with the pound because he can not take the estate but in remainder  after the death of the jointress the testator seem to have mean the estate  shall have come to the elder brother in possession in order to be charge with  the pound which in the above event will not have happen argue for plaintiff  the general intention be that pound shall be pay to plaintiff ambler er p when  both part of the estate be unite in the same branch of the family but great  objection to that reason suppose cook Tollett have leave a son who have  survive but a hour in that case the two part of the estate have be unite and  yet the pound will not have be to be raise this show the intention can not be  so general but that the raise the pound shall be limit in point of time that  be if cook Tollett die without issue live his elder brother it be say to be a  executory trust and compare to marriage article decree to be perform but the  court do not take the same liberty on a will as on article the one be  voluntary and the other be on valuable consideration as ambler in bale v  Coleman p wms in Jones v Westcombe Eq can ab pre Ch there be a considerable  question how far the court will carry the contingency in a will further than  the very word this case deserve great consideration let it stand over to the  first day of rehearings in the next term for counsel to look into precedent  post Amb page with power also to charge the estate with any sum not exceed the  sum he shall have with any wife for a portion for young child remainder to  trustee to preserve c remainder after death of George to use of his first son  and of the heir mile of such first son and for want of such issue to the use  of the second and three and other son of the say George and of the heir male  of such son and for want of such issue to the use of cook Tollett for life c  as in text and testator after recite that he be entitle to pound long annuity  devise to plaintiff out of the same the sum of pound per and and direct the  pound remainder of say annuity to be sell and the money to be lie out in  purchase of land and such land together with such part of his estate as he  shall as aforesaid appoint or for want of such appointment such part not  exceed pound per annum which shall as aforesaid in opinion of his trustee be  most convenient separate to be settle to the use of his young son cook Tollett  for life with like power and limitation over as before direct with respect to  the estate devise to George Tollett remainder to George Tollett for life  remainder to his first and every other son in tail male and in default of such  issue to testator right heir provide that if the rest of his personal estate  as in the text except the difference note