press estate tail, but afterwards says, such devise shall be void as to inheritance of heirs if she die without issue, and then the estate shail descend to his heir male. A common recovery suffered by the daughter as tenant in tail in her lifetime is good, though she afterwards die without issue. Driver d. Edgar v. Edgar. Comp. 379.

10 A limitation in a will to the heirs male of the body of a man to whom the will gives an estate for life in the premises, vests in the ancestor, notwithstanding the premises are given to him expressly for life, notwithstanding the words, "his heirs forever," are superadded to the limitation, and notwithstanding the next limitation over is made expressly" if the ancestor shall die without such heir male," under a devise to A. for life, and after his decease, to the heirs male of the body of the said A. and his heirs forever; but if A. shall die without such heir male, remainder over, A. takes an estate tail. Goodright v. Pullyn. 2 L. Raymond, 1187. Strange

..729.

11 Devise to the heirs of the body of A. the elder of such issue, and his, her, and their heirs, to inherit Before the younger, and his, her, and their heirs, remainder over, vests an estate tail in the eldest daughter of A. (there being no son,) with remainder in tail to the youngest. Heny v. Purcell. 2 Block. 1002. 12 If a mau devise to A. for life, and if A. die without issue then over, the subsequent words enlarge A's estate, and give him an estate tail. Brice v. Smith. Willes, 1. Or, if he devise to A. and his heirs, and if A. die without issue then o ver, the subsequent words restrain the former devise to an estate tail, and shew that heirs" only mean "heirs of the body." Ibid. And it is immaterial whether the devise over be to the right heirs of A. or to a stranger. Ibid.

Ba devise to the second sen (then

45

369.

Under a devise to one and his heirs, and if he die without issue of his body, remainder over, an estate tail only passes. Under devise to one and his heirs, and if he die without issue of his body or under 21, remainder over; an estate tail determinable on the event of his dying under 21. A person benefited by a devise is not, under the 29 Car. 2, c. 3, s. 5, a competent witness to attest the execution of the will containing such devise. Helliard v. Jennings. 1 1. Raym. 505.

46 Devise to A. for 90 years, if he so long live, remainder to the heirs of his body; and, subject to those estates and contingencies, to B. in tail, remainder to C. in fee. The heirs of the body of A. take an estate tail by executory devise. Harris v. Barnes. 1 Black. 643. 17 Devise to S. S. and the heirs of his body lawfully to be begotten, and their heirs forever, charged with the payment of 81. per annum to M. 5. during his life; but in ease the said S. S. shall die without leaving issue of his body, then unto W. G. and his heirs, charged as aforesaid, and

also with 100l. to A. B. within one year after W. or his heirs shall be possessed of the lands devised. S. S. takes only an estate tail. Denn v. Shenton. 1 Cowp. 410. 48 Devise by father to son, and his heirs forever; and for want of such heirs, then to the right heirs of the father, is an estate in tail. Nottingham v. Jennings. 1 Salk. 233. 1 L. Raym. 568.

19 Devise to G. G. for life, and after his death, to the issue male of his body, and heirs male of the body of such issue, is an estate tail in G. G. Koe on dem. of Dodson y. Grew and others. 2 Wils. 322.

20 Devise to A. for life, and after to his heirs male of his body, and his heirs forever; and for want of such heir male, remainder over; is an estate tail in A. Goodright ex deise of Lisle v. Pullin and another. 2 Str. 729.

21 Devise to a man and his sons in

tail male, and in failure of such issue male, remainder over, the devisee having then no issue, gives the father an estate in tail male. Wharton v. Gresham. 2 Black. 1083. 22 Circumstances twisted together, will interpret a devise to be in fee, which on the face of it is only for life. Frogmorton lesse of Bramston . Holyday and others." 1 Black. 535. 3 Burr. 1618. 23 Devise to T. G for and during his natural life, and after his decease to his heirs and assigns forever, and for want of such heirs, to T. E. his heirs and assigns forever. T. G. has only an estate tail. Morgan & Ux. v. Griffith and another. 1 Coup. 234.

24 An estate tail may be created by devise, without words of procreation. A special heir, though he is not heir general, may take by purchase under a will, if the devisor expressly excludes the heir general. I aker v. Wall. 1 L. Laym. 185. 25 Under a devise to A. when he shall be 21 years of age of the fee simple and inheritance of S. to him and

his child or children, forever; but, if he die before that time, then the fee simple and inheritance to B. forever (there being no child of A. in esse ;) A. takes an estate tail. Davie v. Stevens. 1 Douglas, 321

to 324.

26 Devise to trustees and their heirs in trust, to permit A. to take the profits for his life, and afterwards to stand seized to the use of the heirs of A's body, is a use in A. and he has a tail. Whatever was, or would have been a trust at common law, is since the statutes of uses executed. Broughton v. Langley. 2 Salk. 679. 2 L. Raym. 873. 27 A devise of all the testator's real estate in i. to B. during life, and, at B.'s death, to the children of B. with remainder over, gives either an estate tail to B. or an estate for life to B. with remainder in tail to B.'s children. Hodges v. Middleton. 2 Long. 431 to 435.

28 Under a devise "to A. for life, and after his decease to and amongst his issue, and in default of issue," then over. A. takes an estate tail.

Doe

d. Blarford v. Applin. 4 Term Rep. 82.

29 Under a devise to A. of all the testator's whole estate and effects, real and personal, &c. who shall hold and enjoy the same as a place of inheritance to her and her children, or her issue for ever. And if it should happen that A. should die, leaving no child or children, or A.'s children should die without issue," then over; held, that A. took an estate tail. Wood and Ux. v. Baron. 1 East, 259.

heirs, &c. for ever;" B. had one son, who died before A. attained 21, and a second who was born three weeks after that period; held that the first son took nothing, but that the second took an estate in tail male. Whitelock & al. v. Heddon, & al. 1 Bos. & l'ull. 243. 31 By a devise to A. for life, without impeachment of waste, and after his decease to the issue male of his body, and the heirs and assigns of such issue male for ever, and for default of such issue male to B., &c.; A. takes an estate tail. Denn d. Webb v. Puckey. 5 Term Rep.

299.

32 But if in the above case A. had taken only an estate for life, yet as the remainder to his issue and the subsequent remainders were contingent, A. might have barred them by suffering a recovery before issue born. 5 Term Rep. 299.

33 Under a devise to A. for life without impeachment of waste, remainder to his eldest son lawfully to be begotten, and the heirs of such son, and in default of issue male of A. then to B., &c., A. takes an estate for life; remainder to his eldest son in tail; remainder to himself in tail and though A. could not bar the estate tail to his eldest son, yet he may suffer a recovery, and by coming in as a vouchee under a double voucher, may bar all the remainders over. Doe d. Bean v. Halley. 8 Term Rep. 5.

34 Under a devise to A. for life, without impeachment of waste and with a power of jointuring; remainder to the issue male of A.'s body and their heirs; and in default of such issue to B. for life, without impeachmert of waste and with power of jointuring; remainder to the issue male of B.'s body and their heirs for ever; with a proviso, that in case A. or B, should become possessed of any other estate, and be obliged to change his name, that he should have the option which to take, but not to take both estates,

but that one of his estates should go to the other of his nephews; remainder and residue of the testator's estate to A. in fee: held, A who had no child till after the death of the testator, took an estate tail under the first devise, and that a recovery suffered by him after the birth of a son was good. Frank v. Stovin. 3 East 548.

35 A. devised all his estates in the county of D. to a trustee for 200 years, to the use of the trustee during the life of his son J. S. to preserve contingent remainders, nevertheless to permit J. S. to receive the rents and profits; and after his decease to the use of the first son of the said J. S. to be begotten on the body of the woman he should happen to marry, and the heirs male of such first son, and for want of such issue to the use of the second, third, fourth, and every other son of J. S. and the heirs male of their bodies in succession, and for want of such issue male, then to the use of his daughter E. S. her heirs and assigns for ever; the testator afterwards made a codicil whereby he devised all his estate to his son J. S. and his children lawfully to be begotten, with power for him to settle the same by will or otherwise on such of them as he should think proper, and for default of such issue, then to his daughter E. S and her children lawfully to be begotten with a similar power, and in default of such issue to J. S. and E. S. equally between them; and he further provided that a settlement of 2001. per annum should be made on any woman whom his son should happen to marry, and that his estates should be chargeable therewith. At the time of making the codicil J. S. was married but had no child: held that the codicil was to be construed independent of the will; and that under the codicil J. S. took an estate tail, with a power to settle the estates on all or any of his issue in such way as

he should appoint, and thereby determine the estate tail so far as it should be inconsistent with such settlement. Seale v. Barter. 2

Bos. & Pull. 485. 36 Devise to testator's first son by his wife gotten or to be gotten, for life, remainder to trustees to preserve contingent remainders; remainder to the several heirs male of such first son lawfully issuing, so as the elder of such sous and the heirs male of his body should always be preferred and take before the younger and the heirs male of his body; remainder to the testator's second, third, fourth, and all and every other son and sons, for their several and respective lives; remainder to trustees, and to preserve, &c.; remainder to the several heirs male of their several and respective bodies lawfully issuing, so as the elder of such sous, and the heirs male of his body, should be always preferred and take before the younger of the same sons, and the heirs male of his and their body and bodies: remainder to the testator's first and other daughters for their lives; remainder to trustees, &c. ; remainder to the several heirs of their several and respective bodies. lawfully issuing, so as the elder of such daughters, and the heirs male of her body, should always be preferred and take before the younger of the same daughters, and the heirs male of her and their body and bodies.

There were other clauses in the will, by which, after giving an estate for life to the first taker, the testator limited to trustees, &c.; remainder to the first and other sons of such first taker, and the heirs of their bodies, so as the elder of such sons, and the heirs of their bodies should always be preferred before the younger of the same sons and the heirs male of their bodies: held that the first son of the testator took an estate tail. Poole. 3 Bos. & Pull. 620. 37 A. devised to his nephew B., but if

Poole v.

he died without male heir, then to another nephew C. and his heirs; and charged the estate with an an nuity to D., and several legacies to other persons to be paid at a future time: held that B. took an estate tail. Deen d. Slater v. Slater. 5 Term Rep. 335.

38 Devise to A. and her heirs, and if she died without issue then she was enabled to dispose of the estate by will or deed, and for want of such issue and direction, &c. then to the devisor's right heirs; held that A., who had issue, took an estate tail. Doe d. Neville v. Rivers. 7 Term Rep. 276.

39 Devise to A. and B. and their heirs for ever, provided that if both have issue then both their dividends to go to the issue of their own bodies; but if but one have issue, then the premises to go to that issue; and for default of such issue in both, to the right heir at law :" held that A. and B. took estates tail. Doe d. Gregory & d. Geere v. Whicheloe. 8 Term Rep. 211.

40 Under a devise" to A. and B. and their heirs, and in case they agreed to sell the estate, that they should have their equal shares of the money arising therefrom, but if they agreed to keep the estate whole together, then that the rents should be equally paid and divided between them, and to the several and respective heirs of their bodies;" A. and B. took only estates tail. Roe d.

James v. Avis. 4 Term Rep. 605. 41 Under a devise to A. and the heirs of her body for ever, as tenants in common and not as joint-tenants; and in case A. die before 21 or without leaving issue of her body, theu to B.: held that A. took an estate tail. Doe d. Candler v. Smith. 7

ing issue, then a devise of the same to E. H in fee; gives to R. C. an estate tail in order to effectuate the general intent. And cross remainders cannot be implied between the issue of R. C. Doe d. Cock v. Cooper. 1 East 229.

or

43 Under a devise of all freehold and copyhold estates whatsoever situate at B with their appurtenances, to A. and the heirs of her body lawfully to be begotten whether sons daughters as tenants in common ; and in default of such issue, then over: held that A. took an estate tail. Pierson v. Vickers. 5 East, 548.

44 A. after giving different annuities to an only son, increasing at different ages till 30. and to be paid to him until he married, devised thus; "in case my son shali happen to marry before he attains the age of thirty, then I give and devise to him and the heirs of his body all my real and personal estates, &c. and if my son shall happen to die without leaving issue of his body, then I give and devise the same to my brother B.:" held that the son took an estate tail in the real estates, and the personal estate absolutely. Daintry v. Daintry. Term Rep. 307.

6

45 A devise to trustees in trust to receive rents and profits during the life of A. and that such rents and profits shall be applied for the subsistence and maintenance of the said A. during his life, is not an use executed in A. and cannot unite with a subsequent legal limitation to the heirs of the body of A. Silvester v. Wilson. 2 Term Rep. 444. 46 Under a devise of land to the testator's son Joseph, his heirs and asassigns for ever; but in case his son should die without issue, then, to go to the child of which his se cond wife was enscient: held, that Joseph took an estate tail. Doe d. Ellis v. Ellis. 9 East, 382. 47 N. in August, 1778, devised land to his son William for life, remain

der to W. the son of William, lirë ing at the time of the devise, for life, with remainder to the first and every other son of the first son of William successively, in tail mail, with remainder to the second son of William, (then in esse.) with remainder to his first and every other son successively in tail male, with remainder to every other unborn son of William successively, in tail male; remainder to the testator's second son Samuel for life; remainder to the first and every other son of Samuel, successively, in tail male, with remainder to the testator's three daughters, in tail general, as tenants in common; with remainder to the sa ne three daughters in fee; and devised to trustees to preserve contingent remainders. The testator died the 1st March, 1780, leaving issue two sons, William and Samuel, and three daughters. William, the eldest son, entered under the will, and died seized, in April, 1796, leaving two sons, William and Henry; and William, the grandson of the testator, entered, on the death of his father, under the will, and died seized, in June, 1799, leaving issue a daughter, and his wife privement enscient, who was delivered of a son, also named William, in October, 1799. It was held, that the posthumous son took the estate in remainder, by the devise, in the same manner as if he had been born in the lifetime of his father. Stedfast ex dem. Nicholl v. Nicholl. 3 Johns. Cas. 18. 48 C. by his last will and testament, after charging his estate with the payment of a debt, providing for his wife, &c. devised his real and personal estate to his four sons and a daughter Elizabeth. and then added, further my mind and will is, that if any of my said sons, William, Jacob, Thomas, and John, or my daughter Mary, shall happen to die, without heirs male of their bodies, that then the lands shall return to the survivors to be equally divided be