burst and another versus earl OF Winchelsea et all SC Bl a appointment under a  settlement operate as a common devise and the appointee in feesimple if heir  at law be in by descent and not by purchase brown a special case out of the  court of chancery case Thomas Herbert Esq be seize in fee of the premise in  question make his last will and testament in write c bear date the that of  October in f this must be a mistake they can not argue that the testatrix mean  to pass over the issue of her niece and devise the estate immediate to c l c  but they may have say that she consider her niece and her issue by her present  husband as take care of by the article and therefore she do not devise any  estate to they not think it necessary but begin by devise to the use of the  heir of the body of her niece by any other husband and for want of such issue  to c l in tail now accord to the that resolution in salk have there be no  article the estate will have vest immediate in c l not because the testatrix  mean as here say to devise it to he immediate but because a immediate devise  to the heir of the body of a person live be accord to that resolution void and  therefore that devise be void be as no devise and the intention be that c l  shall take after a void estate be by legal construction the same though in  fact not so as a intention that he shall take immediate where the whole of a  testator intention can take effect yet so much as can shall suppose the devise  have be to a person disable to take with remainder to l or to t S who have fly  in the testator life in tail remainder to c l it be clear c l will take  immediate therefore be the that resolution in salk law of which queen the case  will be this S m seize in feesimple devise to c l in tail after a precedent  void devise c l must take immediate but he will take and the testatrix know  and mean it subject to the equitable estate in the article and the case will  be no more than that S m stand seize in feesimple as a trustee for the estate  in the article and as to the residue of the feesimple for her own benefit and  free from any trust salk pl recite the trust and devise and it seem that this  judgement can be suppose consistent with the that resolution in salk there be  however great reason to doubt whether that resolution be law see will burrow  er p these word I give and bequeathe to my dear and belove wife Elizabeth  Herbert after payment of my just debt all my money plate jewel household good  and furniture wheresoever and all my good chattel and personal estate real or  personal whatsoever and wheresoever that shall be in my possession or I shall  be any way entitle to at the time of my decease and I further give devise and  bequeathe g to my say dear wife and her heir such part of all my real estate  that I have any power to dispose of by this my will and further give devise  and bequeathe to my say wife out of the remain part of my say real estate for  her better support and maintenance till my son Thomas attain the age of  twentyone year the sum of a year and my will be that the several bequest and  devise to my say wife as aforesaid shall not nor be intend to prejudice my say  wife in her three or dower out of my say real estate burrow and he appoint her  sole executrix of his will on the that day of march the testator die so seize  and leave the say Elizabeth his widow and Thomas Herbert his only child by her  his heir at law Elizabeth Herbert enter upon and enjoy the real estate and on  the that April intermarry with John Powell Esq her second husband and previous  thereto by indenture date respective on the that and the that April she by  lease and release convey the premise in question to trustee c to the follow  use videlicet of herself and her assign for life without impeachment of waste  then to the use of the earl of Hertford and Winchelsea and their heir c for  year upon trust since determine and subject to the trust aforesaid remainder  to the say Thomas Herbert her son and his assign for life without impeachment  of waste then to trustee to preserve contingent remainder remainder in t tail  to the say Thomas Herbert the son videlicet remainder to the t first and every  other son and son of the body of the say Thomas Herbert in tail male and in  default c to the use and behoof of the heir of his body general and in default  of such issue to such use and to the use and behoof of such person or person  and for such estate intent and purpose as she the say Elizabeth Herbert by any  deed or deed to be by her duly execute in the presence of two or more witness  or by her last will in write or any write purport to be her will sign and  publish in the presence of three or more credible witness whether covert or  sole and notwithstanding her coverture shall limit or appoint and for want of  such limitation or appointment to the use and behoof of the say Elizabeth  Herbert her heir and assign for ever she die on the that of July in the  lifetime of her husband John Powell leave the say Thomas Herbert the son her  only child and heir at law be also only child and heir at law of the say  Thomas Herbert decease her first husband before her death videlicet on that  may she in the presence of three credible witness and as the law require for  the disposition of real estate duly make and execute her last will or a write  purport to be her will which be sign seal publish and declare by her as and  for her last will whereby she give several legacy to the say John Powell her  husband and other and she also give and devise thereby as follow videlicet I  give to my dear belove son Thomas Herbert and his heir and assign for ever all  my real and personal burrow estate plate jewel c c and all my write c but  first subject to the payment of my debt funeral expense and legacy and servant  wage and all other debt which she g this clause make it unnecessary to send  the first question mention in p to be determine for though the subsequent  devise out of the remain part of the testator real estate of a year to the  wife till the son attain the age of twentyone year show that the testator  think he have not before give the whole real estate to the wife yet there be  nothing to show what he mean by the remain part and therefore it seem that  this last clause be quite uncertain and therefore not sufficient to control a  express precedent devise to the wife of such part of the real estate as the  testator have power to dispose of that be the same as a devise to her of all  his real estate for a devise of all can extend no further than to such as he  have power to dispose of these deed be set out at large in the state case but  this be the substance of they this be also set out at large and in proper form  in the state case the whole will be set out verbatim in the case burrow er p  therebycharges upon it and she make her say son Thomas Herbert and the earl of  Hertford her executor and give the earl of Hertford full power to act as  guardian for her say son on her death the earl as guardian to her son and for  his use and benefit enter and receive the rend and profit to the time of the  death of the say Thomas Herbert the son on the that of February Thomas Herbert  the son die a infant intestate without issue and unmarried leave Roger Powell  Esq his heir ex part father and Lucy Allen widow his heir ex part matris on  the death of the say Thomas Herbert the son Roger Powell enter and receive the  rend and profit during his life but on that June Lucy Allen file her bill  against the say Roger Powell and other pray to be let into possession and she  afterward die Edward burst the father of the present plaintiff as her  representative exhibit his bill of revivor and supplement several abatement of  the suit have since happen bill of revivor and supplement be duly file and the  present plaintiff William h and Edward h now claim the say estate under the  say Lucy Allen as she be heir to the say t h the son ex part of a mother and  the present defendant Thomas Morgan Capel Hanbury and William Powell now claim  the same under the say Roger Powell now decease as he be heir to the say t h  the son ex part of a father the original cause be hear on the that of may  before ld Hardwicke who direct a case to be make and these two question to be  state for the opinion of this court videlicet saint question whether by the  will of Thomas Herbert the father husband of Elizabeth Herbert afterward  Powell the estate in question the real estate of the say Thomas Herbert pass  to the say Elizabeth in fee d question whether it descend upon the death of  Thomas Herbert the son to his heir ex part of a father or to his heir ex part  of a mother h h as to this d question and which as above observe be the only  doubt in the cause Mr jewel for the plaintiff argue that if there have be  nothing but the deed the old use will have beenclearly in e h where a man make  a feoff in fee whether the use be not declare but leave to result or whether  it be express declare to the feoff and his heir make no difference for in both  case it be the old use and the feoff continue seize of his old estate   light  b lev salk but he admit that if the estate have be limit in default of  appointment by e h to the use of a stranger then the heir must have take by  the appointment as a purchaser but in this case the heir do not take the  estate either by the deed or by the will for he will have take it without they  they convey nothing for they give nothing to he but what he have before  therefore the whole that be do have no operation at all but be a mere nullity  and the give he the estate subject to debt make no difference as appear from  clarke v smith salk Lutw comy and though the instrument execute by e h be not  strict a will yet it isa testamentary disposition it must be attest as a will  p win it have the consequence and effect of a will it be ambulatory and  revocable and the disposition in it will lapse by the death of the appointees  in the life of the appointer and so decree in lady Sunderland and the duke of  Marlborough and he cite Mod that where a copyhold be devise be previous  surrender to the will to the heir at law he be in by descent Mr York solicitor  general on the other side say there be two question first whether as the  estate be by the devise charge with debt and legacy the descent be not thereby  break second whether Thomas the son take the estate under the deed or under  the appointment or will he say he give up the first question as it be not now  to be maintain since the case of clarke v smith cite by Mr jewel and allam v  Heber stram but as to the second point he argue that where a feoff be to the  use of such person and of such estate as he shall appoint by his will the  devisee be in by the feoff and not by the will   light b but not so as to vest  from the time of the will and that this hold more strong in the present case  because it be the will of a feme covert to take effect under a power and  therefore it must operate as a appointment or not at all and therefore he say  that this case must be consider in the same light as if the word of the will  or appointment have be original insert in the deed itself by way of limitation  of the use of the reversion in fee to t h and his burrow er p the suit  afterward abate by the death of e h father to the present plaintiff they  revive it on that January the cause come on to be hear before the Lord keeper  who order that the say former order on hear shall be carry into execution in  like manner as if Edward burst have be live burrow this case be twice argue in  this court it be first argue very learned and elaborate by Mr jewel for the  plaintiff claim under Lucy Allen the maternal heir and Mr York solicitor  general for the defendant claim under Roger Powell the paternal heir on  Tuesday that February the second argument be by Mr Norton for the plaintiff  and Mr perrott for the defendant on the that and that of November on that  November the judge of this court certify their opinion as follow have hear  counsel on both side and consider of this case we be of opinion that the  estate in question in this cause pass by the will of Thomas Herbert the father  to the say Elizabeth in fee we be also of opinion that Thomas Herbert the son  do not take the say estate from his mother by purchase but by descent I  consequent upon his death it descend to his heir ex part of a mother Mansfield  t denison m foster e Wilmot Lord keeper Henley have afterward decree accord  the defendant appeal to the house of lord but before hear it be compromise by  a composition as to the retrospective account of the profit of the estate but  that the decree shall stand with regard to the estate itself