carter rundale versus eeley and other S c carter overrule do v beauclerk east  ejectment trespass and ejectment bring by Edward rundale versus John eeley  Sarah his wife and Elizabeth style upon a lease of William veil of one message  acre of land and acre of pasture in Tithil and Wellingley upon notguilty plead  the jury find as to land in b and one three part in three part to be divide of  the residue for the plaintiff as to two part residue of the land in question  they find a special verdict they find William Bezar the elder be seize of  these two part in fee he have issue four son John Robert William and Matthew  in November he by his will in write devise these land as follow first he  devise his land in Brestin and in other place not in question to John for life  and after his decease to the heir male of his body and after his decease to  Robert and the heir of his body and for default of such issue to Matthew and  the heir of his body for ever but these land be not in question then he devise  to John and his heir for ever land in rotherin then come the devise whereon  the question grow item I devise to my son John all those message land and  tenement in Tithill and wellingly in the county of York to have and to hold  the same to the say John Bezar for life for and under the use condition and  limitation hereafter limit and after his decease then to the use and behoof of  the heir male of his body and for default of such issue to Robert and the heir  male of his body and for default of such issue to William and the heir male of  his body and for default of such issue to the use of Matthew and the heir of  his body for ever provide always and upon condition that the say John and his  heir male shall pay a annuity of sixty pound to Robert William and Matthew  videlicet twenty pound per annum apiece out of my say purchase land in Tithill  and wellingly and also that the say John shall take a wife not have under a  thousand pound portion to enable he to pay legacy and if be make default of  such annuity or marriage then I give all my land in Tithill and wellingly  which I have by purchase to my three young son Robert William and Matthew and  to their several heir for ever as before be limit equal to be divide among  they and that it shall be lawful for my say three young son and their heir to  enter into the land aforesaid and to enjoy it to they and their several heir  without the let or disturbance of John notwithstanding any thing in this  devise to he then there be a proviso that it shall be lawful for John to make  a jointure the jury find that William Bezar the devisor die and that John  after his death do marry a wife not have a thousand pound portion and that  John the son enter into the two part residue now in question that John have  issue two daughter Elizabeth and Sarah the defendant and die without issue  male after the death of John Robert do enter and be seize prout law postulate  Robert in devise these two part to William his brother in these word carter as  for those land in Tithill and wellingly I devise they to my brother William  and the heir of his body for ever and for default of such issue to my brother  Matthew and the heir of his body for ever Robert die without issue William the  three brother enter and then they find the death of Matthew without issue  William be so seize do after levy a fine to I S to the use of himself and his  heir the jury find the defendant Elizabeth at the time of the flare levy be  marry to one W and Sarah be but twelve year old William have levy a fine to  the use of himself and his heir he devise these part residue to another  William Bezar the lessor of the plaintiff he enter after the death of the  devisor and make a lease to the plaintiff upon who the defendant enter carter  er p Bridgman chief justice have thus open the case deliver the opinion of the  court as follow we all agree as for these two part residue for as for one part  and some particular land it be find for the plaintiff judgement ought to be  give for the defendant many question have be make upon this record we may well  compare it as Shelly justice in my Lord dyer do in another case to a Banbury  cheese pare away the superfluity and the rest will fall in a narrow compass  therefore I shall cut off something in the case as I go along first it be  agree when William Bezar the testator have four son John Robert William and  Matthew and devise the land in question to John for life under the condition  and limitation in his will and after his decease to the use of the heir of his  body this though it be limit to he for life be nevertheless a estate tail to  he as well in a will as in any other conveyance the estate can stand together  but the estate for life be swallow up in the tail and the same rule hold where  a estate of freehold be limit to a man for life the remainder to the heir of  his body it be a estate tail in a devise as well as in a deed to go on it be a  devise to John for life the remainder to he in tail remainder to Robert in  tail remainder to William in tail remainder to Matthew in tail provide and  upon condition that John and his heir shall pay to the three brother a annuity  of twenty pound apiece out of the say land and that be shall marry a wife of a  thousand pound portion upon default whereof be devise all these land to his  three son and their several heir male for ever as before be limit equal to be  divide among they and that it shall be lawful to enter c though this devise be  say to be upon express word of a condition yet it be but a limitation of the  estate if it be a condition the estate be frustrate and the heir at law shall  take advantage of it a devise to the old son though it be by word of a  condition yet it be a limitation and upon the limitation it cease without  entry or claim Borastons case Rep foe so that by the breach or nonperformance  the estate of John cease and it now vest in Robert the next thing be this that  notice be requisite to have be give John be heir at law shall have have notice  of this will and limitation but yet I say it be not necessary notice shall be  give though he be heir therefore the verdict be good enough carter though it  find not John have notice the reason be plain when notice ought to be give the  law appoint who shall give it where none be bind to give it he be to take  notice at his peril croak car foe Gimlett versus sand I shall only cite the  book not the case No body be bind to give he notice in this case the case be  frequent in our book where estate cease by limitation of use and the land be  limit over to another none in these case mention any notice give or require in  our case if notice shall be requisite we can have make the limitation total  void for it cease for not marry a wife worth a thousand pound he marry before  notice give the notice then will come too late but it be a limitation of a  estate he ought his danger to take notice of it two case have be object  against this Francis case report and Mallories case report as to Francis case  it be this a estate be limit by use to John Francis by deed after his father  death he be heir at law to this use there be a proviso that if the say John  Francis shall not suffer his father executor quiet to take away the good and  chattel of his say father which shall then be in his house then the say use  limit to the say John Francis shall cease and be void it be agree that notice  of the proviso ought to be give to John resp but the reason be different from  that in our case the estate be limit to he by deed now he ought to have notice  who be executor now the will be collateral to his estate in the land put the  case it have be as we be that by the deed it self the use have be limit to the  father and after to the use of his son for life provide if John the son enter  upon black acre the use shall cease there he ought to have no notice for he  take the estate by limitation by deed he ought to take notice himself of the  limitation in the deed and so Mallories case be different from we bargainee by  deed enrol shall not enter upon the lessee for nonpayment of the rend unless  it be show that he have notice for the bargain and carter er p sale and the  lease be distinct but the limitation of the estate and condition be couple  together in our case the next step be there be a cease of the estate in John  Bezar by take a wife not worth a thousand pound the next question be what  estate Robert William and Matthew have by this will after John estate be so  determine by limitation this indeed be the great and only question the  resolution of the rest as the fine and warranty do depend on this and in this  something too must be pare off before I come to the main point the devise be  to John in tail subject to the condition aforesaid and upon failure of John be  devise the land to Robert William and Matthew and their several heir male for  ever as before be limit equal to be divide among they if there be no more in  the case upon John failure Robert William and Matthew have each of they a  three part in common of a estate tail in possession he give the estate not  only to the three son but to their several heir male then the word be to their  several heir male forever be do not say body but in a will it ought to be  construe as if it have be to the several heir male of their body and the  carter word before limit can reasonable be construe that they shall take in  remainder for it be intend the shall each take in possession and in lieu of  their annuity which cease it be a devise to they and the heir male of their  several body as be before limit that be the heir male of their several body of  the land before limit or to such heir male before limit it have be urge and a  question have be make upon the subsequent word and that it shall be lawful for  the three young son to enter and to hold and enjoy the same to they and their  several heir for ever they expound this either to be a feesimple which be but  a harsh construction and contrary to his intent who will have the heir male to  take it before the heir general or to give theremainder in fee to they  expectant upon the estate tail as if land be give to a man and the heir of his  body the remainder to he and his heir he have a fee tail and a feesimple  expectant if this last construction be make this will not make alteration as  to Matthew three part for he have fee and it will descend to the sister as to  Robert three part it will settle a fee in William when be die this be clear if  there be a express devise to the three young brother and their several heir  male and by the late word it shall be lawful for they and their heir to enter  c these late word be but explanatory that be such their heir and it be the  strong because it come in with a copulative videlicet it be against the word  of the will to construe it a estate tail remainder in fee by the first word  when a devise be to they and their several heir male it give present  possession and then it come and say afterward that they and their heir shall  enter and enjoy these word can be intend to give a remainder to they therefore  it shall be understand of such heir that may enter Rep foe word to take  without effort are cum execution if land be devise to a man and the heir of  his body and for default of such issue to another in this case it be for  default of such issue or such heir of his body Frenchman case crok Gilbert  witty where a devise be of three several house to three several person there  can be cross remainder and the rule be good by justice dodderidge Cok Com foe  land be give to one and the heir of his body habendum to he and his heir he  have a estate tail and a feesimple expectant I admit it to be so in a grant  because a grant be take strict against the grantor I be not satisfy to  construe it so in a will for there the rule be contrary not what be most  advantageous for the devisor or best for the grantee but what be the intent of  the devisor but take the law so in a will yet it differ from our case for  there the fee be limit in the habendum as it be the office of the habendum to  restrain and limit the general estate in the premise in our case it be only  copulative and exegetical the case be clear that Robert William and Matthew  have each of they estate tail in a three part as tenant in common the question  then rest upon the former remainder limit to they whether afterward each of  they have estate tail by virtue of the will in possession of a three part  whether those former remainder to Robert and the heir of his body and to  William and the heir of his body and to Matthew and the heir of his body  carter whether these remainder after this devise to the three young brother in  possession after the failure of John do continue it be move at the bar that  these three young brother have cross remainder if that opinion be ground upon  the word as be before limit it shall be carter er p construe thus the son  shall have it successive as before mention but there be no colour for that for  the devise give they the land after John default that be immediate and to they  in possession then it can be construe that the same entire clause shall both  give it to they in possession and in succession Gilbert and Wittys case per  Doderidge cite before then the intent of this be to make they not cross  remainder but remainder one after another that be the three young brother  shall have a present estate tail in a three part after the failure of John and  the remainder also stand and so both devise stand but not altogether but  quantum become to be able if this construction hold the consequence be William  after the death of Robert and Matthew be actual seize of his own three part  and seize of the other part by the devise of the remainder and then his fine  wrought a discontinuance of the whole this be the great difficulty in that  case that this construction shall stand I be a good while of opinion and that  upon these follow ground and reason William Bezar do original intend to have  it go in succession this be titulus physical scientist John failure be titulus  forcible and his failure bring they near the estate it be not reasonable the  estate devise express to the three son shall be take away by implication far  than the implication make the estate inconsistent the first devise to Robert  be void as to a three part I confess because he be to have a estate in  possession of a three part there be a pretty case in my Lord coke on Litt land  be give to the husband and wife and to the heir of the body of the husband the  remainder to the husband and wife and to the heir of their two body beget the  husband die without issue the wife shall not be ten ant in tail after  possibility the remainder in special tail be void for that it can never take  effect for so long as the husband shall have issue it will inherit by force of  the general tail there can never be heir of their two body but the heir of the  husband must be so yet under correction there may be some question in that  case whether the wife shall not take a estate tail after possibility though  the first devise to Robert of the remainder of the whole be void as to a three  part because he have a three part in possession by John failure but why shall  not Robert remainder stand as to the other two part and so the present estate  of Matthew to work only by interposition leave he a estate in remainder if  this construction be make the testator will will be fulfil and the  inconsistency answer to enforce this suppose a man devise black acre to a in  fee and after by the same will devise a three part to b for life or in tail  this last devise to b do not make void all to a but b shall have a estate in  possession a in remainder suppose the will have carter give a three part to  Robert and the heir male of his body in possession and so on as to each man  three part the remainder of all to Robert and the heir male of his body that  be each a three part in tail the remainder of all to Robert in tail the  remainder over this will have make good remainder successive and why not so  here nothing appear in the will to control the former devise upon these reason  this exposition seem at first agreeable to law and the will if the will be  thus expound it will follow though no warranty be in the case the defendant  the daughter will have no right to the possession of the land yet I be of  opinion when the devise be to John in tail subject to be void upon the  limitation follow the remainder to Robert in tail male the remainder to  William and so to Matthew and upon John failure it be to the say three young  son and their several heir for ever as before be limit equal to be divide  among they I do think that this devise when it come to take place by John  failure do whole control and revoke the other remainder for the former part  and leaves the feesimple expectant in the heir of the devisor which by the  death of Robert and Matthew come to the daughter of John my reason be there be  no express intent in the will that they shall have estate in a three part in  possession and in remainder afterward the will imply the contrary for it be to  they and their heir male for ever for ever show his intention that there shall  not be remainder now there be a express intention we must make a legal  construction I will put this question carter er p suppose the devise have be  to John in tail remainder to Robert in tail remainder to William in tail and  so to Matthew as it be here but without limitation add to the estate of John  and after by express word he have devise a three part to Robert in tail in  possession I conceive for this three part to Robert in possession not only the  estate of John be revoke but all the remainder also I put this case to  illustrate we the reason be the same when upon the failure of John Robert have  a present estate in a three part the remainder limit in a former part of the  will as to that three part be absolute go and revoke true if his remainder  have determine without issue the heir have take place the remainder not  determine by death but by ceasure and interposition of another estate upon  which the remainder do not depend the remainder can not stand here observe a  difference between a conveyance to use and a will in a conveyance to use there  may be interposition of other estate and the remainder stand good because this  remainder depend and bang on the first root but in a will the remainder settle  must follow the rule of law after the death of the devisor there be no root  nor spring then for this cause I conceive all the remainder be void in the  whole because each of they have a three part in possession I can here cite  authority in this case the text it self be the will and we must take our  conclusion from thence now all the remainder be void Robert die without issue  this his three part come to the heir at law the defendant carter and so when  Matthew die too and they be tenant in common with William though Robert enter  into the whole and after his death William do enter and levy a fine with  proclamation with warranty yet neither the entry nor fine nor warranty do not  prejudice the heir at law who be tenant in common with William who have his  three part first the entry do not hurt the tenant in common it be find he  general enter now by virtue of the reversion the heir at law be tenant in  common of a three part a general entry of a tenant in common be so far from  mischieve that a general entry of one make a actual entry for another tenant  in common Hobart Trin James foe smales and dale the entry of one enable they  all to bring a action of trespass than which a great actual entry can be  observe beside the general entry of William into the whole here be a fine levy  of the whole light Com foe a if one coparcener enter into the whole and make a  feoff of the whole this divest the freehold in law out of the other  coparceners but the case of a fine and feoff be not the same in case of  coparcenry if one coparcener enter general and make feoff of the whole land  Littleton go no further the livery upon the feoff be a actual declaration of  her mind but if a coparcener enter general into the whole and levy a fine of  the whole there be no authority in law that a fine shall be so construe as to  amount to a special entry for though a fine be a feoff on record yet it be but  so fiction law if another be in by tort it will not amount to a entry as a  feoff shall the quality of the person differ too as well as the conveyance for  there be difference between coparceners and tenant in common the reason of  Littleton case of a feoff and warranty may be this sect after a general entry  a feoff with warranty shall expound it a feoff without warranty shall not  expound it that be her entry to be so for the law will if possible save the  warranty so privity between coparceners and tenant in common may make a great  difference there be not the same reason for tenant in common nor the same  privity they have several estate and title   light b Lord coke say when one  coparcener special enter claim the whole land and take the whole profit that  she gain the one moiety by abatement but we be before on a general entry and  my Lord coke say the feoff be no abatement because they make but one heir ass  pl this be clear in my Lord Hobart in smales case as to a general entry if he  special enter yet without more it make no intrusion or seize I therefore be of  opinion if land be devise or grant to two in common and one enter general as  in our case and after make a feoff of the whole and the feoff enter though  there be no actual take of the profit yet he may have a assize for his moiety  that be prove by my Lord Hobarts case and by our book Hemsley and prince case  crok Elizabeth foe it awake a actual seize and that be the ground to maintain  assize or trespass the entry of the one be the actual entry of both so here  the fine of the whole shall not be construe to divest the heir of that part of  which the law give they possession as this case be there be other great reason  why this fine do not carter er p hurt carter Seymors case Rep if they have  estate in possession and not turn to a right a fine work nothing the warranty  can hurt if they have a right it be a right of entry in one case descend on a  woman infant in another case descend on a feme covert who have right to enter  and they have a possession at the time of the warranty create so as to these  two three part for as to the other the plaintiff must have judgement we all  agree judgement for the defendant