case tempt Talbot case hopkins versus hopkins Nov for subsequent proceed see S  c west tempt hard atk Ves sen see nchol v nchol W Bl note Vanderplank v king  hare east v Twyford hl c explain and correct Bective v Hodgson hl c see Abbiss  v Burney Ch d a construction in favour of executory devise to support the  intent of the testator will be make either in the court of law or equity if it  may be do consistent with the rule of law the testator Mr Hopkins by his will  devise his real estate to trustee and their heir to the use of they and their  heir in trust for Samuel Hopkins the plaintiff only son which plaintiff be  heir at law to the testator for life and from and after his decease in trust  for the first and every other son of the body of the say Samuel lawful to be  beget and the heir male of the body of every such son and for want of such  issue in case the say John Hopkins the plaintiff shall have any other son or  son of his body lawful beget then in trust for all and every such son and son  respective and successive for their respective life with the like remainder to  their several son with the like remainder to the heir male of the body of  every such son as before limit to the issue male of the say Samuel Hopkins and  for want of such issue in trust for the first and every other son of the body  of Sarah the say John hopkins old daughter lawful to be beget with like  remainder to the son of John hopkins other daughter and for want of such issue  then in trust for the first and every other son of his cousin whether dare  wife of Francis dare lawful to be beget with like remainder to the heir male  of the body of every such son of the say whether dare and for default of such  issue then in trust for his own right heir for ever then come two proviso the  one whereby every person that shall come into possession of his estate be to  take his name and hear his arm the other be in these word provide also and it  be my will that none of the person to who the say estate be hereby limit for  life shall be in the actual possession thereof and in the enjoyment of the  rend and profit or of any great or other part thereof than as hereinafter be  mention until he or they shall have respective attain his or their case tempt  Talbot age of twentyone year and in the mean time and until his or their  attain to such age my trustee and their heir and executor shall make such  allowance thereout for the handsome and liberal maintenance and education of  such person and person respective as they shall think suitable and agreeable  to his estate and fortune and it be my will that the overplus of the say rend  and profit over and above the annual allowance or such part thereof as shall  remain after all my debt legacy and funeral expense shall be first pay with  the payment whereof I have charge my real estate in case my personal estate  shall not be sufficient for those purpose do go to such person as shall first  be entitle unto or come into the actual possession of my say real estate  accord to this my will Samuel Hopkins die in the testator lifetime without  issue and some time after the testator die without any alteration make of his  will nor have John Hopkins any other son nor be any of the other remainderman  in be at the testator which circumstance after the testator death occasion the  bring two bill one by John Hopkins and his daughter to have a account and a  execution of the trust and John Hopkins pray that as heir at law he may have  the profit till some person come in be capable to take under the will as part  of the trust undisposed of the other bill be bring by the trustee that till a  person be in be capable of take the profit may be accumulate to increase the  estate atk S c death except dare son of Ann dare the first question be whether  by Samuel death in the testator lifetime the several limitation between he and  dare be not become void there be no particular estate to support they as  remainder by reason of Samuel death in the testator lifetime who be to take  the first estate nor nobody capable of take at the testator death but the son  of whether dare who thereby claim the whole interest present or whether these  intermediate limitation shall not enure by way of executory devise to any  other son he may hereafter have the second question be in case the limitation  to the other son of John Hopkins be to be look upon as a executory devise what  shall become of the rend and profit in the mean time the master of the roll be  of opinion that the limitation to Samuel Hopkins be to be consider as if it  have never be in the will and therefore that the devise to afterborn son be by  future word in case his cousin John Hopkins shall have any other son it be now  to be consider the first devise and may take effect as a executory devise Vid  atk S c the cause be first hear at the roll and there decree to be a executory  devise case tempt Talbot er p case tempt Talbot Mr sergeant Eleyre and Mr peer  William argue that the consideration of trust and legal estate be the same  this limitation to the other son of John Hopkins be to be take to be a  remainder and can not enure the rule of law be never to construe that a  executory devise which may enure as a contingent remainder they agree the  difference between deed and will that in the former the first estate must be  good otherwise all the remainder depend thereon be void and can never arise  but in the latter the first estate may be void and yet the remainder take  place as in Ro ab pl blow a cro Elizabeth vern but they insist that devise of  real estate be to relate to the time of the make the will as if one devise all  the land he have or shall have at his decease yet no afterpurchased land shall  pass but such only as he have at the time of the will make and that what be a  limitation by way of remainder at the time of the will make can not by any say  with Brownsword v Edward Ves do v fonn Rep dougl Rep to in which case it be  hold and determine that a devise may operate either way accord to the event  subsequent accident become a executory devise salk side Ro Abr sand salk and  that this be to arise after a estate tail be too remote the law not allow of  executory devise to arise after a estate tail Mr attorneygeneral Mr solicitor  general Mr Verney Mr fazakerley Mr Bootle and Mr strange argue on the other  hand that Samuel be dead without issue in the testator lifetime this  limitation to the other son of John Hopkins shall enure by way of executory  devise they observe that executory devise be not of a very long stand yet that  they be of the same nature with another thing which be very ancient which be  spring use which be as old as use themselves and that if at commonlaw such  thing be allow it be very well do of the judge to admit of executory devise to  carry into execution as far as possible the intent of the testator that the  testator case tempt Talbot intent be clear in this case that the first and  every other son of John Hopkins shall take and that this intent may be carry  into execution be likewise clear indeed as a contingent remainder it can never  take effect because remainder must take place eastern earnestness the  particular estate determine but in order to prevent that inconveniency other  way have be find out to support will and the Lord Hobart commend the judge for  be clever to serve the party intent the rule lie down on the other side that a  limitation which may enure as a remainder shall never be construe to be a  executory devise be true but that be only a supposal that the party intent be  that thing shall go accord to the ordinary form but where they can there  extraordinary method be use to serve the intent and it be impossible to find  out any set of word more proper to make a executory devise than those use here  nothing but the intervene estate to Samuel can make any difficulty and that be  answer by the case put on the other side Ro Abr b of a devise to a for life  remainder to b and of a devise to a monk remainder over a die in the testator  lifetime b shall take by way of executory devise and in the latter case  immediate upon the testator death the remainderman shall take and yet if  either a have outlive the testator or the monk be deraigned in the testator  lifetime in both case the second limitation must have be a remainder so in  this case the estate to Samuel never have take effect it must enure by way of  executory devise to the first and every other son of John Hopkins whereas have  Samuel outlive the testator the limitation have be a remainder the case in  side wide differ from this for that be upon a settlement which be complete  upon the execution of it whereas a will be ambulatory until death nor can any  better comparison be draw between this and the other case that have be put  which be of contingent remainder and so quite foreign to executory devise and  in that of Purefoy versus Roger sand the particular estate be exist after the  testator death which consequent support the remainder and case tempt Talbot so  plain differ from this case where be no particular estate in be but cro  Elizabeth one seize in fee devise land to I S for five year from Michaelmas  then next remainder to b in fee and the question be whether this be a good  devise of the remainder in fee to b and adjudge that this be a good devise of  the remainder in fee for though it be admit that a freehold can not expect or  be in abeyance yet in that case the freehold and feesimple descend and vest in  the heir at law till Michaelmas and so be not in abeyance and this make the  devise after Michaelmas good cro Elizabeth pay case in leut or clarke v smith  this case be mention by the court and admit to be law a seize of land in fee  devise to b in fee to commence and take effect six month after the testator  death this be plain a good executory devise and will take effect at the end of  six month after the testator death but it be express hold there that during  those six month the estate descend and continue in the heir at law of the  testator be a strong authority for the construction now desire for there the  devise be of land to I from Michaelmas follow remainder over in fee the  testator die before Michaelmas it be hold by the court to be a good executory  devise for a remainder it can not be because it can not begin until the  particular estate do which be not to commence till Michaelmas after and a  freehold can be in expectance it be therefore hold that the freehold shall in  the mean time descend to the heir at law and vest in he but if in that case  the testator have live to Michaelmas then it have be a good remainder and if a  executory devise may by a subsequent accident become good as such especial  where the testator intent be clear that it shall which be the reason of the  resolution in the case of Higgins versus Dowler vern where the limitation to  the daughter case tempt Talbot er p be allow to be good there be no son to  take so a devise to two and their heir one die in the life of the testator the  survivor shall take the whole salk and if court of law do much more will court  of equity mould the word so as to let in those who the testator intend to take  nor will the objection hold that have be make on the other side videlicet that  this be to take effect after a estate tail be too remote and can never arise  for here can never be any estate tail before this executory devise be to arise  Samuel be dead without issue nor be there any danger of a perpetuity the long  time that this can subsist as a executory devise be only until the birth of a  son to a person in be which be but nine month whereas in the case of Floyd  versus Carey in the house of lord twelve month be allow to be a reasonable  time and in that of Massenburgh versus ash which case be this a term for year  be assign to trustee in trust for baron and feme during their life and the  life of the long liver of they and if there shall happen to be issue male of  their body live at the time of the decease of the survivor they then in trust  that the old son of that marriage shall be maintain out of the rend and profit  until he attain his age of year and then the whole term to be assign unto he  and in case he shall die before the age of twentyone year then in like manner  for the maintenance of the second three four and every other son of that  marriage in the same manner but if no such son or if all the son die before  twentyone then to I S baron and feme die and leave a son only who die while a  infant of about five year old and the question be whether the remainder over  to I S be good and hold that it be vern twentyone year be hold to be good and  where there be no danger of a perpetuity it be just that executory devise  shall be carry as far as may be to serve the intent of the party this court go  a great way in that case of Massenburgh versus ash and though the court at law  will not at first allow case tempt Talbot any executory devise to arise after  the compass of a life or life wear out together as appear by the case of  scattergood versus Ed e Eq Cas Abr pl salk yet that of Floyd versus Carey be  subsequent to that and in the house of lord have lead the court of law into  carry they as far as this court do the case of Lord glenorchy versus Bosville  ante be another strong authority where the word be determine to carry a estate  tail but the trust be executory and the intent of the party clear otherwise  they be restrain and decree to carry but a estate for life with remainder to  the first and other son c Lord chancellor two question have be make upon this  will the first be whether this limitation to the first and every other son of  John Hopkins can now take effect as a executory devise or whether it shall be  take as a contingent remainder and consequent void for want of a particular  estate to support it by reason of Samuel death in the testator lifetime and  that John Hopkins have no son in be at the testator death in who the remainder  may vest the next question be in case the limitation be take as a executory  devise what be to become of the rend and profit of this estate until John  Hopkins have a son as to the first I think it impossible to cite any authority  in point nun have be cite it seem to be allow that if thing have stand at the  testator death as they do at the time of the make of the will the limitation  in question will have be a remainder by reason of Samuel estate which will  have support it so be the case of Purefoy versus Roger sand and limitation of  this kind be never construe to be executory devise but where they can take  effect as remainder with also fearne contingent remainder on executory devise  Edward also Edward so on the other hand it be likewise clear that have there  be no such limitation to Samuel and his son the limitation must have be a good  executory devise there be no antecedent estate to support it and consequent  not able to enure as a remainder so that it must be the intervene accident of  Samuel death in the testator case tempt Talbot lifetime upon which this point  must depend and as to that I be of opinion that the time of make the will be  principal to be regard in respect to the testator intent if a infant or feme  covert make a will and do not act either at full age or after the coverture  determine to revoke this will yet the will be void because the time of make be  principal to be consider and the law judge they incapable of dispose by will  IP at those time the same reason hold in the case of a devise of all the land  which a man have or shall have at the time of his death no afterpurchased land  shall pass without a republication which be the case of bunter versus cook  salk because the time of the will make be chief to be regard indeed it be  possible that subsequent thing may happen to alter the testator intent but  unless that alteration be declare no court can take notice of his private  intent not manifest by any revocation of the former though these subsequent  accident may and must in many case have a operation upon the will as in the  case of full versus full devise to a and the heir of his body remainder to b a  die in the lifetime of the testator hold that b shall take present although a  leave issue cro Elizabeth and Hutton and Simpson vern devise of land to a in  tail and after a s death without issue to b a die in the lifetime of the  testator leave issue the devise to a hold to be void and that b shall take  present though against the express word of the will and the intent of the  testator and in the lord Landsdowns case the first limitation do not expire by  effluxion of time but by the intervene alteration of thing between the time of  the will make and the testator death and the word there for want of such be  not construe to create another estate tail to postpone the limitation but only  to convert the second estate to the precedent limitation so we see that in  these case the method of the court be not to set aside the intent because it  can take effect so full as the testator desire but to let it work as far as it  can case tempt Talbot er p and if in this case we consider it as a executory  devise the intent will be serve in case John Hopkins have a second son but if  it be take as a remainder the intent plain appear that a second son of John  Hopkins shall take be quite destroy there be no precedent estate to support it  as a remainder the very be of executory devise show a strong inclination both  in the court of law and equity to support the testator intent as far as  possible case tempt Talbot vide do v fonnereau Douglas and authority there  cite and though they be not of ancient date yet they be of the same nature  with spring use which be as old as use themselves I can see no difference  between this case and the other of like nature that have be adjudge and if  such a construction may be make consistent with the rule of law and agreeable  to the testator intent it will be very hard not to suffer it to prevail in pay  case cro Elizabeth Vid also Noy S c but different state et ante have the  testator live to Michaelmas the limitation have be a remainder and if a  remainder in its first creation do by any subsequent accident become a  executor devise why shall it not be good here upon the authority of that case  where by the testator death before Michaelmas what will otherwise have be a  remainder be hold to be good by way of executory devise I think that in this  case the limitation will operate as a executory devise if it be of a legal  estate and therefore shall do so as a trust the rule be the same the next  question be what be to become of the rend and profit in case this be take to  be a executory devise until the birth of a son to John Hopkins and this must  depend upon the word of the proviso the word be that none of the person to who  the estate be limit shall be in the actual possession and enjoyment of the  rend and profit until they shall respective attain the age of twentyone and  that in the mean time the trustee shall make such allowance thereout as they  shall think suitable and then he will that the overplus of such rend and  profit do go to such person as shall be entitle unto and come to the actual  possession of his estate c by which word none be affect but such as be to come  to the estate under the limitation it restrain they from have any thing to do  with the estate till they attain the age of twentyone and provide the surplus  beyond their allowance to be lie up for they but here be no provision make  what shall become of those rend and profit until a son be bear the word in the  mean time have be different construe and it be say that there be no case tempt  Talbot certain terminus a quo from whence they shall begin have Samuel live  the terminus must have be from the time of the limitation take place and so it  must be so often how often any come to be entitle to this estate under the  several limitation but until somebody be in be to take under this executory  devise the rend and profit must be look upon as a residue undisposed of and  consequent must descend upon the heir at law Carrick v errington p will  bullock v stone Ves Harris v barn burr the case be the same where the whole  legal estate be give to the trustee and but part of the trust dispose of as in  this case and where but part of the legal estate be give away and so the  residue undisposed of the legal estate descend upon the heir at law so it be  hold by the Lord king in the case of Lord and lady Hertford versus Lord  Weymouth which show that equity follow the law one objection indeed have be  make which be that the testator have in this case devise another estate to  John Hopkins his heir at law can never be suppose to have intend he this  surplus and to warrant that objection the case of north and Crompton Chan can  have be cite I answer that in these case the heir do not take by reason of the  testator intent be one way or the other but the law throw it upon he and  wherever the testator have not dispose be his intent that the heir shall take  or not take yet still he shall take for somebody must take and none be appoint  by the testator the law throw it upon the heir and so affirm the decree and  order the personal estate which be of very great value to be lie out in land  and settle to the same use as the real estate accord to the direction of the  will case tempt Talbot er p and direct the trustee to deliver possession to  the plaintiff John Hopkins of particular estate and of the estate purchase by  the testator after the make the will and to deliver the deed and write to he  and declare he be entitle to the rend and profit devise to the trustee accrue  since the testator death till some person shall be in be entitle to a estate  for life in possession accord to the limitation in the will and be entitle to  the surplus produce of the testator estate after payment of the annual sum  charge thereon and direct a account of both the real and personal estate and a  like direction as to the personal estate for invest it in land there be no  direction give concern a conveyance of the estate but a general preservation  and liberty to apply to the court as there shall be occasion atk S c case  tempt Talbot er p soon after the affirmance of this decree John Hopkins have  issue William Hopkins a second son who soon after die without issue John the  old son of Hannah dare have attain twentyone bring his bill to have a  settlement make to he by the trustee either in tail or for life as the court  shall think he entitle and for also a account of the profit during William  lifetime and that the surplus profit may be pay to he and upon the hear it be  argue for he that the estate vest in William the second son of John Hopkins on  his birth and be no long executory and consequent all the subsequent  limitation become remainder either contingent or vest accord to their  respective nature and that those that be contingent not vest either during or  eastern earnestness that the particular estate of William determine be void  and consequent the plaintiff John dare as have the first remainder vest in he  be entitle to the estate in possession for the defendant it be argue saint  that there be no necessity to consider the limitation subsequent to that to  the second son of John Hopkins as contingent remainder but that they may  subsist as so many distinct executory devise and if one do not take effect  another may d and which be most rely on that admit that by the estate vest in  William the subsequent limitation be to be look upon as remainder yet such as  be contingent be not destroy by their not vest during his life but that the  legal estate in the trustee be sufficient to support they d that a  determinable freehold in the equitable estate descend on the heir at law and  that be sufficient to suppose the contingent remainder of the trust estate and  decree by Lord Hardwicke chancellor that march that though by the vest of the  estate in William Hopkins the second son the subsequent limitation be to be  consider as turn into contingent remainder yet that they be not destroy by not  become vest in the lifetime of William Hopkins but that the limitation of the  fee of the legal estate to the trustee be sufficient to support they and the  bill be dismiss but the chancellor say he will be understand to mean such of  the remainder only as can be support by the rule of law and not the remote one  to the son unborn of son unborn for the possibility upon possibility the law  will not admit of Vid atk S c Ves S c