case read versus snell August see Wingfield v Wingfield Ch d a wife who in  article before marriage be by express word bar of every thing she can claim  out of her husband personal estate by the commonlaw custom of London or  otherwise howsoever have no right to paraphernalia where executor be make  trustee they can take nothing for their own benefit unless it be particular  give to they nor as they have no ownership can they alter the interest of the  beneficiary and trust a direction in a will that the interest with the  principal of the residue of a testatrixs real and personal estate shall be  settle on her daughter or the heir of her body as the executor shall think fit  will not empower they to give it from the daughter to the grandchild for in  this case the word or must be construe and in order to put a reasonable  construction on the will Lord chancellor this be bring before the court upon  the follow case Samuel read upon his marriage with the mother of the plaintiff  enter into article to lie out pound in the purchase of land to be settle to  the use of himself for life remainder to his intend wife for life in bar and  satisfaction of her dower and three and all other part of the real and  personal estate of the say Samuel read which she may claim by the commonlaw of  England the custom of London or otherwise howsoever Mr read be then a freeman  of London and have issue a daughter mary read the plaintiff he make his will  and give his wife all her jewel and p personal ornament of every kind with his  household good and furniture and after give a few legacy out of that part of  his estate which as a freeman of London he have a power to dispose off he  leave the residue to his wife in a bill be bring by the present plaintiff for  a account of her father personal estate and to have the pound lie out pursuant  to the article and to have her orphanage share place out for her benefit in  the decree upon this bill there be a particular direction that the mother mrs  read shall have her paraphernalia and all other just allowance mrs read upon  the d of may make her will and after some small legacy give the rest in the  word follow atkins as for the residue of my estate real and personal whereof I  shall be possess or to which I shall be entitle at the time of my decease I  give and bequeathe all and the whole of it to my brotherinlaw William Snell  and Mathias king my executor afternamed in trust the interest of it to be pay  to the use of my dear daughter mary read or to be reserve in the hand of my  say executor at their discretion and also that the say interest with the  principal be settle on her or the heir of her body lawful to be beget as they  my executor or the survivor of they shall think fit but in case she my say  daughter shall die leave no heir of her body lawful beget then I give and  bequeathe the say residue as follow whereas my husband Samuel read esquire  decease have leave my brotherinlaw William Snell a considerable contingent  legacy already I give and bequeathe one half of the aforesaid residue to my  brotherinlaw Mathias king and jane his wife and their heir for ever and the  other half I give to the two daughter of my sister Sarah Watson decease they  the say Mathias and jane his wife and the two daughter of my sister Sarah  Watson or the survivor of they pay pound out of the say residue to charitable  use to be distribute at the discretion of my executor after mrs read death the  plaintiff bring a supplemental bill and bill of revivor against the executor  and contingent legatee for a account of the personal estate of her father and  mother and to have direction as to the management of the residue for the  benefit of the plaintiff who be then a infant upon hear of this cause in sir  Joseph Jekyll decree the former decree to be carry into execution and as to  the surplus direct it shall be lie out in Southsea annuity in trust for the  plaintiff during her life and after her death then upon trust for her first  son to be pay he when he shall attain his age of year and in case he shall die  before he shall attain that age without leave any issue live at the time of  his death then in trust for the second and every other son in the atkins er p  like manner and in case the plaintiff shall leave no son or son or all and  every such son or son shall die before attain the age of without leave any  issue live at the time of their death then upon trust for the daughter of the  plaintiff if but one to be pay to her at the age of year or day of marriage  and if more than one then in trust for all such daughter to be equal divide  among they and pay to they when they shall respective attain their age of year  or be marry and in case the say plaintiff shall have no daugh atkins to or in  case she shall have a daughter or daughter and all and every such daughter and  daughter shall die before attain the age of year or be marry then upon trust  for the several person to who the say surplus be limit over by the testatrixs  will and the accountant general be to declare the say trust accord it be from  these two decree that the appeal be bring and the complaint against the first  be touch the wife paraphernalia be allow the other be as to the whole  direction give for the settlement of the residue the question as to the first  will depend entire upon the article by which she be compound with and by  express word bar of every thing that she shall claim out of her husband  personal estate by the commonlaw custom of London or otherwise howsoever vide  glover v Bates ante vol now her claim to paraphernalia must be either by the  commonlaw or the custom and it be a claim out of his personal estate for he  may in his lifetime have dispose of they and after his death they remain  liable to the payment of his debt it be determine in Rawlinson versus  Rawlinson July the that SC cite pre Charles ante and have be so hold ever  since that where the wife have compound with the husband he be to be consider  in regard to the custom as leave no wife medcalfe v Ives ante vol morris v  Burroughs ante vol ante it follow therefore that she can have no claim by the  custom to the paraphernalia and this case be strong than the case of Chomley  versus Chomley vern but then it be say that the husband have give it to her by  his will but that make no difference because the custom will interpose and he  can only dispose of a moiety of his personal estate therefore the first decree  must be vary by leave out the direction that in take the account of the  plaintiff father personal estate the defendant the mother shall be allow her  paraphernalia and let the rest be affirm have say this in regard to the first  decree the material part of this appeal relate to the mother personal estate  and there are three question first what power be give to the trustee by her  will second what interest be give by it to the daughter and the heir of her  body atkins three whether the devise over in case the daughter die leave no  heir of her body be good the first depend upon a for minute consideration of  the pen of that clause in the will I have state at large which be very  defective pen and therefore it will be necessary for the court to supply word  in order to make a reasonable construction here the executor be make trustee  and therefore from the nature of the thing be to take nothing for their own  benefit Graydon v Hicks ante cook v Duckenfield ante unless it have be  particular give to they they have no ownership and therefore can alter the  interest of the beneficiary and trust it be insist that in this case by the  express word of the will they may accumulate the interest during the life of  the plaintiff but my opinion be her meaning be only to give they that power  during her daughter minority and the word to be pay to the use of my say  daughter seem to imply as much in the first codicil be these word if my  daughter shall not live till of age or be marry then I give the sum of pound  per and to I S during her life in the second codicil she give her wear apparel  to her servant in case her daughter die under age or unmarried now it can be  conceive that she who be take such minute care of her daughter interest as not  to give away such a small sum as pound a year nor even her wear apparel unless  she shall die under age or unmarried atkins er p shall intend to put it in the  power of two stranger in blood for such they appear to be to her to deprive  her of the whole interest during her life but there be other word from whence  it be argue that the executor have a dispose power and these be that the  interest and principal be heir of her body as they shall think fit but I think  there be no ground either in law or reason to so large it be admit by the  defendant counsel that the word and as suppose a devise of land to a or his  heir it will be a devise in fee and in Plowdens comment b many case be put  where or shall be construe and vide etian Richardson v Spraag p W dobbins v  Bowman post vol Jackson v Jackson Ves Brownsword v Edward Ves eccard v brook  Cox p W Furnival v crew post vol Welsh v Peterson ibidem note and there be one  case in this very will where it must be so construe and that be in the second  codicil where she give atkins her wear apparel to her maid in case her  daughter die under age or unmarried and can it be imagine that the mother can  intend to put it in the power of her executor to give her personal estate from  her daughter of who she appear to be so fond to her grandchild who she have  never see but then it be ask what power be give to the trustee I answer a  considerable one they may judge of the fund in which it shall be place of the  manner in which the settlement shall be make they may insert proper clause to  make the disposition effectual and that may be a very material power in the  present case and this be agreeable to the nature and office of trustee but the  other which have be contend for will be to give they a ownership and not a  authority but there be a insurmountable obstacle to their have this power in  the present case and that be Mr king be one of the legatee over suppose he  shall be the survive trustee if he have the power contend for he may direct  that the whole shall accumulate during miss read life and so better his own  interest as to the second question I be of opinion it be a gift to the  daughter for life with a contingent remainder to such heir of her body as  shall be live at the time of her death lev S c raym S c there have be many  case where heir of the body have be construe word of purchase Lisle and grey p  W S c and Papillon and voice vern S c in the case of a real estate peacock and  Spooner vern S c Doffern versus bolt see Hodgson v Bussey ante and last of all  Hodgeson versus Bussey November vide ante page which be determine by I upon a  through consideration of all the other case in a question relate to personal  estate the only doubt therefore be whether there be sufficient word in the  will to indicate this intention and I think there be but as it will be  necessary for I to take notice of they in consider the three question I will  reserve myself or it and therefore what I say under that head must be consider  as applicable likewise to the present the three question be whether the  bequest over be good and this be the principal one in the case the general  objection be that the contingency be more remote than the law will allow first  because it be after a general die without issue second because the original  gift be to the daughter and the heir of her body atkins as to the first part  of this objection I think this do not amount to a limitation over after a  general die without issue which will certain be bad as be determine in the  case of Lord George beauclerk versus miss dorm vide ante page which be hear  before I June as a cause by consent but be full speak to and consider and so  be all the other case from that of king and mell but here the word be in case  she shall die leave no heir of her body now the word leave be a participle of  the present tense which relate to the time of her die in forth versus chapman  which be report in p wms but I have choose to take it from my own n ten of the  case in which I be counsel the word be after give it to the first taker  William gore without the word for life and if v a say nephew shall depart this  life and leave no issue of his body then he give it over and in that case sir  Joseph Jekyll be of opinion that the devise over be void but Lord Macclesfield  reverse that decree which have never be impeach but many case settle on her or  the construe these word or may be construe atkins er p have be determine in  conformity to it as for instance Sabbarton versus Sabbarton case in Lord  Talbot time which be determine much u on the same foundation and if any thing  this case be strong for here it be leave it tie it up more to the time of die  but the second part of the objection have be urge as strengthen this case in  the case of pain versus Stratton where pain have bequeathe a moiety of his  personal estate to his sister mary Stratton for life and after her decease to  the heir of her body and the other moiety upon the devise of which the  question arise he give to his sister and pain and the heir of her body lawful  beget or to be beget and for want of such issue or heir of her body as  aforesaid he give the same to the child of his sister mark that Stratton equal  among they and to their heir and assign for ever immediate after the decease  of his say sister whether pain and Lord Macclesfield be of opinion upon the  probate that the devise over be void but the original will be some way or  other blunderingly produce he observe that the word after the decease of my  sister and pain have be interline and in part raze out again but not in such a  manner but they be still legible and therefore he send it to a master to  inquire whether those word be raze out of the will at the time of the testator  death the cause come on again upon the master report before the lord  commissioner they be of opinion that it have not be put into a right way of  examination and they therefore respite give judgement till the matter can be  examine in the atkins proper ecclesiastical court and the party be at the  expense of litigate it in the prerogative court in order to have these word  pronounce part of the will however that court be of opinion they ought not to  be insert upon which the cause come on again before Lord chancellor king he be  of opinion the devise over be void upon which a appeal be bring and the decree  affirm the that of march bro par can and ed S c the use I make of this case be  that it be the opinion of Lord Macclesfield and of the lord commissioner the  devise over may be good though the first devise be to and and the heir of her  body for otherwise they will never have put the party to the expense of try  whether those word after the decease of my sister and pain be erase another  case be that of the attorney general at the relation of the goldsmith company  versus hall Fitzgib S c where the word be I give the residue to my son Francis  hall and the heir of his body to his and their own use but in case my son  shall depart this life leave no heir of his body live at the time of his  decease then I give so much of the say residue as shall not have be dispose of  by my say son to the goldsmith company it be hold the devise over be not good  not because of the first gift be to his son and the heir of his body but  because by the other word he have give he a power of disposition which be hold  to be inconsistent with a devise over and here it be no more than the common  disposition of real estate which have be frequent giver to one and his heir  with a devise over in case he die leave no issue it have be object the word  for life be not in this will but though weight have be lie upon those word for  life when they have be in yet I do not know that any weight have be lie on the  want of they when the intention of the testator have otherwise appear but if  weight have be lie upon the want of they where it have be a trust execute yet  there can be none where it be a trust executory for where it be a trust  executory this court be bind to see a settlement make agreeable to the  intention of the testator and so it be lie down by Lord Talbot in Lord  glenorchy and Bosville case in his time and be likewise one of the many point  determine by I in Robert versus Dixwell vide I Tr atkins and this case be  still strong because the settlement be direct to be make accord to their  discretion and it be a very proper discretion for they to exercise but yet I  can by no mean go so far as the decree at the roll have do for that will not  be to construe the testatrixs will but will be usurp a power of make a new  will for her atkins the decree have add several new contingency if the  daughter leaves no heir of her body at the time of her death by the will it be  to vest in the remaindermen but the decree give it they in case none of her  child live to attain the age atkins er p of twentyone therefore as to so much  of the decree of the that of February as give any direction or in any wise  relate to the trust of the surplus of the plaintiff mother personal estate  subsequent to the trust thereby direct and declare for the plaintiff during  her life it must be reverse and instead thereof I order and decree that in  case the plaintiff shall leave any heir of her body live at the time of her  death then after the plaintiff decease the clear surplus of such personal  estate shall be in trust for and for the sole benefit of such heir of the body  but in case the plaintiff shall happen to die without leave any heir of her  body live at the time of her death then after the plaintiff decease the clear  surplus of such personal estate shall be in trust as to one moiety thereof for  the benefit of the defendant Mathias king and as to the other moiety thereof  for the benefit of the defendant maria Watson and Cecilia Watson subject to  the charge in the testatrixs will mention and let the accountant general  declare the trust thereof accord subject to the further order of this court  Reg lib b fol appendix atkins michaelmas term geo in banc king