for want of such lawful heirs, he gave the same to another grandson, his heirs and assigns for ever. The Court of K. B. certified to the Court Chancery that the grandson took an estate tail. of Lewis v. 6 East, 336. 26. But where a devise was to a person and his heirs, Tilburgh v. and if he died without heirs, remainder to his half- Barbutt. ] Ves. 89. brother; the devise was held by Lord Hardwicke to pass a fee; this being in fact a devise over to a stranger, as the law considers him; because he could not inherit from his brother. Wild's Case, 27. If lands are devised to A. and his issue, or to A. The words. Issue, Chiland his children, A. having no children at the time, he dren, &c. will take an estate tail; because it is clearly the intention of the testator not to give A. an estate for life 6 Rep. 16. only, but that his children should be benefited by the devise; and they cannot take as immediate devisees, Stovin, 3 East, 548. not being in rerum natura, nor can they take by way of remainder, the devise being immediate. 1 Vent. 229. Frank v. 43. 28. A person devised to his son William for term Anou. And. of his life, and after his decease, to the men children of his body. And if the said William died without any man child of his body, then that the land should Sweetapple remain to another. v. Bindon, Tit. 5. c. 2. The Court resolved that William took an estate to § 14. him and the heirs male of his body. 3 Term R.. 29. E. Wharton devised all the rest and residue Wharton v. Gresham, of his estate, as well real as personal, to his nephew 2 Black, R. A. Wharton and his sons in tail male, and for want 1083. of such issue in tail male, to his brother J. Wharton 373. and his sons in tail male, and on failure of such issue, to his own right heirs. Neither A. nor J. Wharton had any issue at the time of making the said will, or at the death of the testator. A. Wharton died without issue. Davie v. Wood v. Baron, 1 East, 259. This case was sent from the Court of Chancery, for the opinion of the Court of C. B. and the certificate was, that J. Wharton took an estate in tail male in the premises. 30. C. Stephens being seised in fee of the lands in question, devised the same in the following manner:-" I also give and devise to my son William Stephens, when he shall accomplish the full age of 21 years, the fee simple and inheritance of Lower Shelton, to him and his child or children for ever. But if my son W. S. should happen to die before he should accomplish the full age of 21; then I give and bequeath the fee simple and inheritance of Lower Shelton to my wife for ever." Lord Mansfield said, if the testator had used the words, all his estate, inheritance, or, for ever; and had stopped there, the fee simple would have passed; but the words child or children were to the full as restrictive as if he had said, and if my son die without heirs of his body. The words of the will give the son an estate tail, for there were no children born at the time, to take an immediate estate by purchase: the meaning was the same as if the expression had been to William and his heirs, that is to say, his children, or his issue. The words, for ever, made no difference, for William's issue might last for ever. 31. The Master of the Rolls directed the following case to be made for the opinion of the Court of K. B.-T. Lowe devised to his daughter Anne, all his estate and effects real and personal, and added these words," 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 so happen that my daughter Anne should die leaving no child orchil dren, or if it so happen that my daughter Anne's children should die without issue,"-then he directed his estates to be sold. The Court certified that Anne took an estate tail. An Estate tion. Moo. 127. 32. An estate tail may be created by a will by Tail may arise mere implication, without any express words of by Implicadevise. As where S. A. had issue three sons, B. C. and D.; B. died leaving his wife ensient; A. devised Newton v. Bernardine, to the child his wife's son then went with, 20 l. yearly, and if his son C. died before he had any issue of his body, so that his land descended to D. before he came to 21 years, then his executors should occupy it till D. was 21 years of age. It was held that C. took an estate tail by implication, as well by the words, "if he die before he has issue," as if it had "if he die without issue." been, 33. R. W. having two sons, Richard the elder, and William the younger, devised in these words: "It is my will, that if Richard my son shall happen to die, and leave no issue of his body lawfully begotten, that then and in that case, and not otherwise, after the death of the said Richard my son, I give and bequeath all my lands of inheritance in L. unto the said William my son, to have and to hold the same, after the death of the said Richard, to him and his heirs.”—Adjudged by Baron Price, that Richard took an estate tail by implication. Walter v. 34. I. G. having two sons, Richard and John, Goodright v. devised all his lands to his wife for life, and then pro- 7 Mod. 453. Goodridge, ceeded in these words,-" and my will is, that if Willes R. my son Richard do happen to die without heirs, then my son John shall enjoy my lands." Resolved, that Richard took an estate tail by implication. 369. Gardiner v. Sheldon, 1 Ab. Eq. 197. Turke v. 1 Vent. 230. A Devise generally may be enlarged into an Estate Tail. 35. A person having issue a son, B., who was his heir apparent, and two daughters, devised in these words : “ If it happen my son B. and my two daughters to die without issue of their bodies lawfully begotten, then all my lands shall be and remain to my nephew D. and his heirs for ever." It was held, 1°. That no express estate was by this will given to his children. 2o. Nor any estate by implication; because then it must either be a joint estate for life, with several inheritances in tail, or several estates tail in succession one after another. The last it could not be, because it was uncertain which should take first, which next; and the first it should not be, because the heir at law is not to be disinherited without a necessary implication, which in this case there was not; for it was only a designa tion or appointment of the time when the land should come to the nephew. 36. It was resolved in 1 & 2 Eliz. that a devise to A. and the heirs male of his body, and if he chance to die without heirs of his body, remainder over, only created an estate in tail male; because an implication shall not control an express limitation. 37. A devise to a person generally, without any words of limitation, which of itself would create only an estate for life, may be enlarged, by subsequent words, or by implication, into an estate tail. 38. A house was devised to three brothers, among Chapman's them; provided always, that the house were not Case, Dyer, sold, but should go to the next of the name and blood. It was adjudged that the devisees took estates tail. 333. Sonday's 39. M. Sonday devised a house to Margaret his Case, 9 Rep. wife for life, and after her decease, his son William to have it; and if his son William married, and had by his wife any male issue, lawfully begotten of his body, then his son to have it; if he had no male issue lawfully begotten of his body, then his son Samuel to have the house. And added a clause, that if any of his sons or their heirs male, issue of their bodies, went about to alien or mortgage the house, then the next heir to enter. It was resolved that an estate in tail male was created, for three reasons. 1. Because the testator says, "if he hath no issue male, his next son to have it," which was as much as to say, "if William dies without issue male," which words were sufficient to create an estate tail in him. 2°. The last clause, "if any of his sons or their heirs male, issue of their bodies, go about, &c." 3°. The thing prohibited proved it, for if the sons only took an estate for life, this restraint would have been idle. Rumball, 40. A person devised to his three daughters, to be King v. equally divided; and if any of them died before the Cro. Ja. 448. other, then the one to be the other's heir, equally . to be divided; and if his three daughters died without issue, then he willed it to two strangers. Adjudged that the daughters took estates tail. 41. A person devised land to his wife for life, and Robinson after to his son, and if his son died without issue, 1 Roll. Ab. v. Miller, having no son, that another should have it. Ad- 837. judged that the son took an estate tail. 42. A man having issue two sons, devised all his Blaxton v. Stone, land to his eldest son, and if he died without heirs 3 Mod. 123. male, then to his other son in like manner. The Court said, it was plain the word body, which properly created an estate tail, was left out; but the intent of the testator might be collected out of his will, that he designed an estate tail, for without |