Wall, 1 Ld. 4. A person devised to his eldest son, all that his Baker v. farm called D., to him and his heirs males for ever. Raym. 185. Resolved, that the eldest son took an estate in tail male; for the law would supply the words of his body. 5. Where an estate is expressly devised to a person and the heirs of his body, no charge on such estate will enlarge it to an estate in fee. Fyldes, Cowp. 833. 6. A person devised a messuage and lands to her Doe v. eldest daughter Alice, and the heirs of her body lawfully to be begotten, for ever; remainder to her other daughters in the same manner, charged and chargeable with the full sum of ninescore pounds, to be levied and raised out of the first clear annual profits of the said messuages, &c. And that her executors should stand possessed of the said messuage for so long a time as until they should raise the said sum; and to and for the benefit of her daughters A. M. and I. (to whom she had given the money) untik the same should be paid by her eldest daughter Alice or her heirs; and from and after the raising thereof by Alice or her heirs, it was her will that she and her heirs should enjoy the said messuages, &c. for ever. It was resolved, that as the words of the devise created an estate tail; the charge on the lands, and the subsequent use of the words, "heirs of Alice," should be construed to refer to the special designation of heirs to whom the estate was devised at the beginning of the will; and therefore that Alice took only an estate tail. And Lord Mansfield observed, that there never was an instance of an estate in fee raised by implication from the circumstance of a charge being made by the devisor, where an express Denn v. estate for life, or in tail, was given; and here it was infra, an estate tail, with several remainders over. Shenton, Denn v. The word Heirs quali 7. Although a devise to a man and his heirs gives fied by subse- him an estate in fee simple; yet if the word "heirs quent words. is qualified by any subsequent words, which show the intention of the testator to restrain them to the heirs Church v. Nanfan v. 7 Taunt. 85. Browne v. of the body of the devisee, the devise will in that case only create an estate tail. 8. There is a case in Moore, in which it was held that a devise to an unborn person et hæredibus suis legitimè procreatis, created an estate tail. And in a modern case sent out of Chancery, where there was a devise to a person and his heirs, lawfully begotten, for ever, the Court of C. P. certified that the devisee took an estate tail; though it was urged that the words lawfully begotten were surplusage, and equally applicable to collateral as to lineal heirs. It is however observable, that the testator had in ano. ther part of his will devised to a person and to his heirs for ever; so that the variation of the phrase imported a variation of intent, which may have been the ground of the certificate. 9. W. B. devised all his lands to John his son, and his heirs; and if he died without issue, he devised' his lands in R. to M. his nephew in fee; and his 9 East, 382. lands in H. to H. his nephew in fee. Doe v. Ellis, Dutton v. It was resolved, that the first limitation to John was the same as if it had been to him and the heirs of his body, and no fee. 10. W. G. devised lands to his wife for life, and after her death, to John his eldest son, and to his heirs; upon condition that he, as soon as the land should come to him in possession, should grant to Stephen his second son, and his heirs, an annual rent of 41. out of the said tenements; and that if the said John died without heirs of his body, the land should remain to the said Stephen and the heirs of his body. The first question was, whether John had an estate in fee by the devise; which being to him and his heirs, upon condition that he should grant a rent to Stephen and his heirs, it was said the intent was shown that he should have a fee, for otherwise he could not legally grant such a rent, to have continuance after his death. It was however resolved to be an estate tail; for being limited, that if he died without issue, then it should be to Stephen and the heirs of his body; that shewed what heirs of John were intended, viz. heirs of his body. But yet, by the limitation of the will, he was to make a grant of the rent, which being by appointment of the donor, it was not contra formam donationis, but stood with the gift, and should bind the issue in tail. Cro. Ja. 695. 11. W.Hydes having two sons, Thomas and Francis, Chaddock devised all his lands to his wife for life, and after her v. Cowley, decease, then he devised his lands in B. to Thomas his son and his heirs for ever, and his lands in E. L. to Francis his son and his heirs for ever; adding the following words, "Item, I will that the survivor of them shall be heir to the other, if either of them die without issue." Brice v. It was resolved, that this was an estate tail; and that although the first part of the will gave a fee, the second part corrected it, and made it but an estate tail. 12. A person gave and devised all his freehold messuage, &c. to his son P. B. and his heirs for ever, Willes R. 1. on condition that he should pay his son W. B. 301.; Com. R. 538. and devised estates to his other sons in the same manner. Then followed this clause: " Item, my of my will and mind is, that in case any of my said children unto whom I have bequeathed any Smith, shall die without issue, then I give the estate of him or them so dying, unto his or their right heirs for ever." Lord Ch. J. Willes delivered the opinion of the Court, and said the question was, whether P. B. the devisee took an estate in fee or in tail; and this was divided into two questions. 1st. Whether he would have had an estate tail in case the remainder had been devised over to a stranger? 2d. Whether devising it over to the right heirs of the person so dying without issue, made any difference. As for the first question, it could not be doubted, after so many solemn determinations, that if a man devised an estate to A. and his heirs, and afterwards in his will gave his estate to another, in case A. died without issue, the subsequent words reduced A.'s estate only to an estate tail; and restrained the general word heirs to signify only heirs of the body; and this was founded upon these known rules, that the intention of the testator shall always take place in the construction of wills, so far as it can be collected from the will itself, if it be not contrary to the rules of law; and that the priority or posteriority of words in a will was not at all regarded, but that the whole will must be taken together, to find out the intent of the testator. 2o. But this distinction was relied on, that though it would have this construction in case the remainder had been devised over to a stranger, it would be otherwise in the present case, because the remainder was devised over to the heirs of the person so dying without issue. This distinction, though it seemed at first to be of some weight, when considered made no difference, either in reason or in law. Even in grants, where words were construed much stricter than in cases of wills, if there were words that created an estate tail, the grantee would have an estate tail, though the next remainder was limited to his right heirs; and nothing was more common in settlements than to limit an estate to a man and the heirs of his body, remainder to his right heirs; and for this plain reason, to prevent his disinheriting his issue, except by some solemn act done in his lifetime. The court was unanimously of opinion, that the devisee took an estate tail. 13. It is observed by Mr. Durnford, in a note to this case, that by the words, die without issue, the devisor must have meant dying without heirs of the body, or without heirs generally. But to suppose that he used those words in the latter sense, would be to suppose that he intended to devise the lands to his son P. B. and his heirs for ever, and if he die without such heirs, then to the same heirs. There seemed therefore less doubt in such a case respecting the devisor's intention, than in the ordinary case of a limitation over to a stranger, after a dying without issue by the first taker. 14. J. Leslie devised lands to the use of his eldest Fitzgerald v. Leslie, son John, and his heirs for ever; and failing issue of 3 Bro. Parl, Ca. 154. his said son John, then to the use of his second son James, and his heirs for ever; and failing issue of that son, then to the use of his third son George, and his heirs for ever; and failing issue of that son, then to the use of every other son that he should have, and their heirs for ever; and failing his issue male, then to the use of his issue female and their heirs for ever. It was determined by the House of Lords, on an appeal from the Court of Exchequer in Ireland, that according to the intention of the testator, his sons |