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the plaintiff are entitled to recover the whole under this ejectment."

Though in construing wills, the words which in a deed would create an estate-tail, will give a like estate, this rule does not apply when reversed; for words which in a deed pass an estate in fee, and again, words which in a deed, give only an estate for life, may, in a will, pass an estate-tail.

Thus, a feoffment to a man and his heirsmale, without any context, conveys an estate in fee (x). In this case, the word male is rejected as surplusage (y). In a will, the word males will be retained, and a devise in these words will pass an estate-tail; for the law in favour to the intention of the testator will supply the words of the body (z). So if a feoffment be to a man and his heirs, and if he shall die without issue (a), (giving no direction that the issue shall be of his body,) then over, the feoffee will have an estate in fee. In a devise by these words, the devisee will have an estatetail.

It is otherwise, when the limitation over is if the devisee and another person die without issue.

Again, it is not clear that a feoffment to a man and his heirs, and if he shall die without heirs, to a kinsman of the whole blood, who

(x) Abraham v. Twigg, Cro. Eliz. 478.

(y) 11 H. VI. 13 a; 1 P. Wins. 77.

(z) 1 Inst. 27 a; Ld. Ossulton's Case, 3 Salk. 336.

(a) Scrape v. Rhodes, 2 Com. Rep. 541.

may succeed to him as his heir, will qualify the words of limitation to the heirs to mean heirs of the body. In a will, such an expression will certainly have this effect.

A series of cases to this point to this point will be cited, in considering one of the classes of limitations of estate-tail, by will; and to the reader a great variety of other instances will occur in the perusal of this Essay; and numerous are the examples of this sort which the student will find in the abridgments and books of reports.

Again, a gift by deed to a man and his seed (b), without any limitation to the heirs, passes an estate for life only, for want of words to extend the limitation to the heirs by that name. In wills, however, a devise in these terms will pass an estate-tail.

Even in deeds, as has been already noticed, the word heir in the singular number, coupled with words of procreation, will create an entail. Of course, the same construction has place in wills; and in wills, with an allowance of greater liberality to the testator's intention. For the word heir in the singular number has frequently been held to pass an estate in tail general, and to embrace all the issue of the devisee, of the given description.

The following cases are instances directly in point:

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In Whiting v. Wilkins (c), a devise was to R one of the testator's sons for ever; and after his death to the heirs-male of his body for ever; and in default of such heir-male, to the other of the testator's sons, and it was held that R. took an estate-tail.

So in Pausey and Lowdall (d), (a case on a surrender of copyhold lands to the use of a will), the testator devised to B. for life, remainder to his heir of his body begotten for ever, and it was held that B. had an estatetail.

And in Burley's Case (e), a devise was to A. for life, remainder to the next heir-male, and for default of such heir-male, then to others in remainder; and the opinion of the Court of King's Bench was, that A. had an estate-tail; and they determined accordingly.

And again, in Richards v. Lady Bergavenny (f), a devise to B., and such heir of her body as should be living at the time of her death, and the gift passed, in default of such remainder over, an entail.

In Dubber ex. dem. Trollope v. Trollope; or Trollope v. Trollope (g), the testator devised to his eldest son William Trollope for lif, remainder to his first son for life, remainder to the (c) 1 Bulst. 219; 1 Roll. A. 836.

(d) 2 R. A. 794; Styles, 244, 273.

(e) Cited by Hale, 1 Vent. 230; and see Miller v. Seagrave; 2 Eq. Ca. Abr. 318, c. 33.

(f) 2 Vern. 324. (g) Ambl. 453. 8 Vin. Abr. 234.

right heirs-male of his body lawfully begotten, remainder to his second, third, fourth, fifth, sixth and seventh sons of the body of William, and the heirs-male of their bodies lawfully begotten, and for want of such issue, to his son Thomas Trollope for life, and after to the heirmale of his body lawfully begotten, and for want of such heir-male to be and remain with his son Christopher Trollope, and the first son of his body lawfully begotten, and for want of such issue to be and remain to his fourth son James Trollope, and the heirs-male of his body lawfully begotten, and so to the first, second, third, fourth, fifth, sixth, seventh, and the heirs-male of their bodies; and for want of such issue, then to remain and be to his fifth son Matthew Trollope, and the heirs-male of his body lawfully begotten, and so to the first, second, third, fourth, fifth, sixth and seventh son, and for want of such issue, to remain to the right heirs of Sir Thomas Trollope for

ever.

The question being between the heirs-male of Thomas Trollope, second son of Sir Thomas Trollope, the testator (in which branch of the family the estate has been all along enjoyed), and the heir-male of Matthew, the fifth son, who was the lessor of the plaintiff.

The title Matthew made was under the remainder limited to Matthew, the fifth son, supposing that it had taken effect; because three of the remainders were spent by death

without issue; and the other was not subsisting, because as it was agreed the limitation to Thomas the second son did not create an estate-tail, and was no more than an estate for life to him, and afterwards to his first heir-male for life; which estates were determined by his death, and by the death of his first heir-male, who was the defendant's father; and, consequently, as it was contended, the remainder to Matthew the fifth son and the heirs of his body must take effect in the plaintiff, who was his heir-male.

So that the question arose upon the limitation to Thomas Trollope, the second son of the testator, to whom the estate was appointed to remain in these words: "To my son Thomas Trollope for the term of his natural life, and after to the first heir-male of his body lawfully begotten; and for want of such heir-male to be and remain to Christopher," &c.

The Court of Common Pleas declared they were all of opinion, that by virtue of this limitation Thomas Trollope became seised in tail to him and the heirs-male of his body begotten; and consequently the defendant must be entitled as heir-male of the body of Thomas Trollope, his grandfather. And to make this clear and evident, the Chief Justice Eyre, who delivered the judgment, observed, “It may be proper to divide the question, and to consider every part of it separately and distinctly.

"1st. I would first consider it as a devise to

a man; and the heir-male of his body