case shaw against way refer to wile v Lewis atk distinguish ginger d white v  white will approve sand v cook l r ir where a man may have a feesimple by  devise without the word heir and where the devisees take a estate for life  with contingent remainder c S c post S c Eq Cas Abr S c fitzg S c stram S c  fort S c Danv S c bar king b in a special verdict in ejectment the case be  thus Thomas ravenscroft be seize in fee of land c in the parish of Hawarden in  the county of flint do by his last will devise the same to Dorothy his wife  for life and far he devisee to his say wife the sum of five hundred pound to  be raise by her or by her executor c by sale of timbertrees or by sale of any  part of the land or by dig sink get and sale of coal on the premise c at her  choice or at the election of her executor and that if his say wife shall die  before the say sum of five hundred pound be raise then he give her power  either by deed or will in modern report er p her lifetime to appoint any  person to raise the same after her death in manner as aforesaid but if either  of his sister whether Lunsford or Dorothy evatt or the trustee name in his  will shall pay unto his say wife or to her executor c the say sum of five  hundred pound then the power of sell timber c shall cease and after the  decease of his say wife be devise the say land to Francis Branston sergeant at  law Charles not and Edward Parry and to the survivor and survivor of they but  do not say to their heir a subject to the raise the five hundred pound upon  trust for his say sister equal between they during their life without commit  any waste and that if they happen to die leave issue or issue of their body  then in trust that the mother share shall be for such issue or issue or else  in modern report trust for the survivor or survivor of they and their  respective issue or issue and that if both his say sister shall die without  issue or have issue such issue shall die without issue then the say trustee  shall stand and be entrust for John swift and the heir male of his body and  for want of such issue then in trust for ravenscroft Gifford and the heir male  of his body with several remainder over the jury find that Thomas ravenscroft  die seize of the premise without issue and that Dorothy his widow survive and  enter and die seize that after her death whether Lunsford and Dorothy evatt  enter and be seize that whether Lunsford die never have any issue that Dorothy  evatt survive and that after the death of the say whether she enter on the  whole and be thereof seize and levy a fine at the grand session in flintshire  in the four year of James the second of the premise by the name of four  message c and declare the use thereof to Thomas William and his heir until a  common recovery shall be have c and that in the same year a common recovery be  suffer in the say court and the use thereof declare to the say Dorothy evatt  her heir and assign for ever they far find that the say Dorothy evatt be heir  at law to the testator and that John swift be dead without issue that  ravenscroft Gifford in the year and in the lifetime of the say Dorothy evatt  and John swift go beyond sea and there continue twentysix year until the year  that the say Francis Branston and Charles not die in the lifetime of Edward  Parry that the say Dorothy evatt die in the year without issue and that she  never have any issue of her body that the say ravenscroft Gifford enter and be  seize and be so seize he demise the land to William shaw the plaintiff in the  five year of George the first for seven year by virtue of which demise he  enter and be possess until he be eject by the defendant and so they make a  general conclusion this case come before the court by writ of error from the  grand session of Wales where judgement be give for the defendant the counsel  for the plaintiff make these question first what estate the trustee take by  this will what estate the two sister have I e modern report second whether the  two sister take a estate for life in common or a estatetail three whether  judgement ought to be give for the plaintiff for a moiety no crossremainders  be limit by the will to the sister as to the first point it be argue that the  trustee have a feesimple though the devise be not express to they and their  heir for if they shall have a less estate it will not support the trust which  be afterward limit in this will so that the intent of the testator will not be  complete because the several devise afterward make must arise out of the  estate devise to they and though in feoff or grant the word heir be necessary  to raise a fee yet it be otherwise in will for there any word which show that  the testator intend to pass a fee will be sufficient to make it so as for  instance a devise of land to t S for ever so a willock v Hammond cro Elizabeth  pl Rep a S c spicer v spicer godb cro James pl S c roll Rep S c a devise of  land to his wife for life remainder to his old son pay to his brother and  sister forty shilling apiece here be no estate devise to the old son but the  word pay make it a feesimple modern report er p so a devise to his son pay  three pound per annum to his brother be adjudge a feesimple in the son because  the charge to his brother may survive and continue after the death of the  devisee and so it be in all case where the word of pay be collateral I e where  it be not say out of the b walker v collier cro Elizabeth pl Rep a S c b  profit of the land so a devise of all his real estate passes a fee because the  word estate be genus generalissimum comprehend the whole both real and  personal and the word c countess of Bridgwater v duke of Bolton salk pl ld  raym Eq Cas Abr pl S c cite in will Rep by Jekyll master of the roll as a  resolution give on great consideration in which Lord chancellor Cowper when of  counsel discourage a writ of error in parliament S c cite by Talbot Chan Cas  tempt Talb fortesc Rep c all my estate be a description of the fee so on a  devise of all his land of inheritance if the law will permit it be adjudge  that a d Whitlock v Harding more godb hob S c roll Abr S c d fee pass so where  the testator be seize in fee and devise four coat to four poor boy of the  parish of c for ever and all his land to his wife Margaret and her assign it  be adjudge that e smith v Tindall salk e Margaret have a feesimple because she  take the land with a perpetual charge so in the principal case it plain appear  that the testator ntended the trust appoint in his will shall be support  modern report and if that can be do but by a estate in fee the trustee must  necessary have such a estate and if they take a feesimple then the trust be  execute by the statute of use and then ravenscroft Gifford the lessor of the  plaintiff have a estatetail execute in he the second and the chief question be  what estate the sister take by this will and as to that point it be argue that  they take a estate for life only with contingent remainder in tail to their  issue and that it be the intention of the testator that they shall have no  large a estate because of that restriction in his will from commit waste and a  express power of dig coal both which will have be imply if he have intend they  a estatetail therefore these thing be a sufficient indication of his intent to  give they a estate for life only as to that clause videlicet if either of they  die leave issue or issue of their body then in trust that the mother share  shall be for such issue or issue or else in trust for the survivor or survivor  of they this be a joint estatetail to the issue upon a contingency for  otherwise the word survivor will be inconsistent because there be but two  sister for there can be no survivor between two it be true if the devise have  be to they for life and after death to their issue that will have be a  estatetail as for instance a devise to a king v mell lev vent lev Loddington v  kime ld raym stram Mod Fitzgib fortesc Rep a Barnard for life and after his  decease to the issue of his body this be adjudge a estatetail but the case of  Loddington v kime be in point which be thus a devise to his uncle for life  without impeachment of waste and if he bath issue male then to such issue male  and his heir for ever and if he die without issue male then to his nephew in  fee this be adjudge a estate for life in the uncle for if the testator have  intend a estatetail it have be impertinent to have add these word without  impeachment of waste and the inheritance be vest in the issue male and his  heir these word his heir make it certain what issue male be intend then the  subsequent clause if be die without issue must be construe to relate to what  go before videlicet if be die without such issue then live who may take the  inheritance as before direct by the will for otherwise those word will make a  estatetail by implication to destroy a express estate before limit to the  issue male and his modern report heir so in this case the will be that if both  his sister die without issue it must be intend issue then live and capable of  take the inheritance beside all the devise over be express in tail show that  the testator intend only a estate for life to his sister modern report er p as  to the three point whether judgement shall be give for the plaintiff for a  moiety if the court shall be of opinion that the sister have a estate tail it  be argue that it shall because the sister be tenant in common in such case  after the death of either of they without issue the remainder take place  immediate with respect to her moiety and the word survivor must relate to  their issue on the other side the first point be agree that the trustee take a  estate in fee for the reason beforementioned so it be chief argue upon the  second point videlicet that the sister take a estatetail with crossremainders  to their issue which may be infer from these word if either of my sister  happen to die leave issue or issue of their body and if both die without issue  then in trust for ravenscroft Gifford c now it be certain that the word issue  be as effectual to create a estate of inheritance as the word heir of the body  it be mention in several statute and particular in the statute de gift c and  in the statute of a Henry a will so as to the vest and continue of estate it  be the same and as effectual as the word heir of the body and it be more  comprehensive than a devise to one for life and after his decease to his child  which be b Rep more b wild case it be true in that case it be hold a estate  for life in the devisee because he have a son and a daughter then live but if  there have be none then live this will have be a estatetail and so it must be  in this case and for the same reason videlicet because the sister never have  any issue so a devise to his wife for life and afterward to her son and if he  die without issue have no son remainder over adjudge a estatetail in the son  so in a late case in the exchequer which be thus sacred scripture Sutton  devise his land to Thomas Sutton for life remainder to his first son in tail  and if Thomas Sutton and his wife shall die without issue remainder to  charitable use a bill be exhibit it the exchequer to establish this charity  and the defendant plead that Thomas Sutton suffer a common recovery and  declare the use to himself modern report and his heir which plea be allow it  be true that upon a appeal to the house of lord the defendant be order to  answer but it be on the foot of be a devise to a charity and though the  testator may intend it for a charity yet since by operation of law it be a  estatetail that must be observe as to the three point admit this be a  estatetail in the sister then they will have crossremainders by implication  and for this the case of c t raym t Jo c Holmes v Meynell be a authority in  point the testator devise his land to his two daughter and their heir equal to  be divide between they and if c t raym t Jo d they die without issue then all  his land to his nephew Francis in tail the young daughter die without issue  and it be adjudge that the survive sister shall have the whole by implication  for that the daughter have several estatestail by moieties and the survivor  shall have the whole by way of crossremainder and Francis shall have nothing  by implication but must stay till both the daughter be dead without issue  therefore if Dorothy evatt who survive her sister have the whole estate by way  of crossremainder she have suffer a common recovery all the remainder over be  bar thereby it be admit on the other side that where there be a devise to one  for life and after his death to his issue remainder over this be a estatetail  and so it be adjudge in Mellings case which do not differ from the present  case for here the devise be to his sister for life and if they lie without  issue remainder over so that in the one case a remainder be limit after a die  without issue and in the other case it be limit if they die without issue so  in the case of Langley v Baldwin which be refer out of chancery to the judge  of the common plea for their opinion which be thus the testator devise his  land to Jonathan Langley for life without impeachment of waste remainder to I  S his grandchild for life without impeachment of waste with a power to he to  make a jointure of the same land to any woman he shall marry for her life and  after his death he devise the land to the first son of I S the grandchild in  tail and so to the six son and then devise that if I S the grandchild shall  die without issue male the land shall remain to modern report er p I b and the  question be what estate I b take by the will and it be certify by the court of  common plea that be take all estatetail a note by Raymond chief justice in the  case of shaw v weigh a estatetail be raise here by implication because the  express devise be not to all the son for if there have be more than six and  the six dead must the heir at law have it before a seven son Eq Cas ab pl  Fitzgib fortesc Rep stram a which be decree accord as to the concomitant  clause if the word in a will be sufficient to raise a estatetail these clause  videlicet with or without impeachment of waste or alley power to raise money  by cut and sell timber or otherwise shall not control the devise modern report  as to the case of Loddington v kime it come near to the present case but yet  it be not a authority in point for there the devise be to one for life and if  he have issue male then to such issue male and his heir now there the  inheritance be vest in the issue male and his heir these word his heir be a  description of the person who be to take but in the present case there be no  description of the person who be to take as issue therefore it must be such  issue who be live at the time of the death of the sister and if so then it be  a proper limitation and not a purchase and the rather because the devise be  express to the sister for life and to their issue only on a contingency but if  it have be to they for life and that if they die without issue remainder over  that will be a estatetail and all the case cite on the other side prove no  more as for the concomitant clause in this will with or without impeachment of  waste or a power to raise money by sale of timber c it have be object that  they be only directory and shall not control the grant part of the will which  be very true but where the devise be to be collect from the intention of the  testator and to be support only by implication certain those clause be good to  explain what the testator intend as to the three point videlicet if the sister  have a estatetail then whether crossremainders be limit to they by this will  this question entire depend on these word the survivor or survivor of they the  clause be if his sister die leave issue of their body then the mother share  shall be for such issue or issue or else for the survivor or survivor of they  now it be argue that the word survivor must of necessity relate to the issue  for otherwise it will be inconsistent because there be but two sister it be  impossible it shall relate to they for there can be no survivor between two  therefore it must relate to the issue and if so the sister take no estate by  crossremainders therefore judgement ought to be for the plaintiff in error for  a moiety it be hold clear by the court as to the first point that the trustee  have a feesimple for where it appear upon the face of the will that the  testator intend to give such a estate by necessary implication as by limit  such trust which can not be support unless the trustee have a a roll Abr a  feesimple in such case a fee shall pass to they and that the trust be execute  by the statute of use modern report as to the second point which be the chief  point the chief justice be of opinion that this be not a contingent remainder  in tail to the issue of the sister and that a limitation to the issue do not  differ from a limitation to the heir of the body it be true it have be hold  that where a express estate for life be devise in such case no subsequent word  shall create a estatetail by implication but this be a old antiquate and  explode opinion and contrary to the late authority and in this case the  subsequent word without commit waste do not control the devise it be true  where a estate for life be devise to one with a provision immediate for all  his son successive and if he die without issue remainder over in such case the  devisee have but a estate for life because these word if be die without issue  shall be intend a die without such issue as be express in the will and upon  this distinction the case of b salk pl Eq Cas ab pl fortesc Rep vern pl ld  raym say this case be misreport in salk fortesc Rep Fitzgib b Popham v  Bamfield be adjudge for there be a great modern report er p difference between  a devise to t S for life and if he die without issue remainder over and a  devise to t S without express for what estate and if he die without issue  remainder over as to the three point they all agree that if the sister take a  estatetail then they have crossremainders by implication for the subsequent  word be if both die without issue or have issue such issue die without issue  remainder over this remainder be not to be execute until both sister die  without issue they allow that crossremainders will not rise to more than two  by implication but in this case there be but two sister so such remainder may  very well rise to they this be the opinion of the court upon the first  argument but no judgement be give for they take time to consider and order a  second argument and afterward in easter term in the eleven year of George the  first it be argue again the counsel for the plaintiff in error insist that the  sister have only a estate for life and this depend upon such construction as  the court shall make of the word issue which be no legal word of limitation  therefore it can be a limitation in a will otherwise than by intendment and if  so then it must be show on the other side that the testator intend it as a  limitation and in the case of king v mell beforementioned the argument of the  Lord chief justice hale be find on the intent of the testator but in modern  report that case it be necessary to give a power to make a jointure in order  to continue the estatetail undestroyed now in the principal case there be a  express estate devise to the sister for life those concomitant clause  videlicet the give they power to raise five hundred pound by dig coal or sell  timber and restrain they from commit waste show that the testator intend they  shall have a estate for life only for if he have intend a estatetail such a  power and such a restriction have be impertinent and void so that take the  whole matter together it show that the testator do not want advice in make  this will therefore it ought not to have so liberal a construction as  otherwise it will if there have be no such clause to lead the judgement of the  court and to explain the intention of the testator a devise to his son for  life et non aliter and to his son be adjudge a estate for life only in the son  so in the case of backhouse v well in the nine year of queen whether a devise  to t S for life only without impeachment of waste and if he die leave issue  then to such issue and the heir of such issue be adjudge a estate for life  only it be manifest that the word issue or issue in a will may be word either  of limitation or of purchase but in this will the word be if the sister die  leave issue of their body then in trust for such issue or issue or else for  the survivor or survivor of they there the word survivor show that the  testator intend the word issue or issue to be word of purchase because that  word must necessary relate to the word issue and then the sentence will be  thus in trust for the issue or issue and the survivor of they it can not be in  trust for the sister and the survivor of they because there be two and no more  and there can be no survivor between two then a Owen a hilly and tailor be  case be cite which be report in cro Elizabeth by the name of b cro Elizabeth  pl more roll Abr king Fitzgib b clerk v day which be thus videlicet the  husband devise the land to his wife for life and that if she marry after his  decease and have any heir of her body then after her decease that heir shall  have it and the heir of the body of such heir and if she die without issue  remainder over and it be adjudge that the wife have only a estate for life  because the word if she die without issue be graft on the word heir do plain  show that the word heir be use as a designation of the person and not as a  limitation of the estate and that modern report immediate upon the death of  the wife the inheritance vest in the heir by purchase it be argue for the  defendant in error that the sister be tenant in common in tail general because  the word equal to be divide make a tenancy in common in a will as for instance  where a devise be to his three son and their heir and to the long liver of  they to be equal divide between they c it be adjudge modern report er p that  this last clause make they tenant in common and here the devise be to his  sister equal between they during their life and if they die leave issue or  issue of their body then to such issue or issue which word issue be as proper  a word in a will to create a estatetail as the word heir of the body be in a  deed and it be the only word in the statute de gift to describe the heir of  the body videlicet where land be give to one and the heir of his body upon  condition that if he die without issue the land shall revert to the donor the  donee after issue have power to disinherit the issue c therefore if the word  issue be equivalent with the heir of the body it certain make a estatetail and  so be Sondays case a Rep Sondays case a a devise to his wife for life and  after her decease to his son William and if he marry and have issue male then  his son to have it and if he have no issue male lawful beget on his body then  to Samuel in like manner and if any of his son or their heir male issue of  their body go about to alien then the next heir to enjoy it William suffer a  common recovery and declare the use to himself and his heir and it be adjudge  good because he have a estatetail for these word if he have no issue male make  a estatetail which in this case be far enforce by the subsequent word if they  go about to alien which have be impertinent if a estate for life have be  intend because in such case they can not alien as to the three point that the  plaintiff in error ought to recover for a moiety because one of the sister  videlicet whether Lunsford have do no act to prejudice he and that the sister  do not take by crossremainders for such shall never be raise by b cro James pl  Gilbert v witty b implication but where there be a absolute necessity it shall  be do to which it be answer that the sister take by crossremainders by that  clause videlicet if both his sister shall die without issue c now upon the  death of one the whole be vest in the other by way of crossremainder by modern  report implication and that ravenscroft Gifford shall have nothing by  implication till both the sister be dead without issue and without do anything  to bar the remainder as to the first and three point the court vas very clear  in opinion as they be upon the first argument and as to the three point they  hold that where a estate be limit to the heir of the body or to the issue of  one upon the decease of another to who it be express devise for life this be a  estatetail because the law supervenes the intent of the testator and this be  the case of king v mell but of late the court have not go so far as they do  former to supervene the intent of testator as in the case of backhouse v well  in chancery in the Lord Parker time which case differ from that of king v mell  but in one word which be the word only as for instance Mellings case be a  devise to one for life and after his decease to the issue of his body by a  second wife this be adjudge a estatetail and backhouse case be a devise to one  for life only and if he die without issue remainder over this be adjudge a  estate for life because of the word only now in the present case if the word  issue be a limitation it be a entail but if it be by way of description who  shall take it be but a estate for life and here the word be if the sister  happen to die leave issue or issue of their body then in trust for such issue  or issue if the testator have rest there and go no far this have be a plain  estatetail but he go far and say or else in trust for the survivor or survivor  of they which word show that the testator intend the word issue to be a word  of purchase and not of limitation because the word survivor must relate to the  word issue for there can be any survivor between two and therefore it can  never relate to the sister and this be what make the doubt one of the judge  hold it a estate only for life he agree that the word issue in a will be a  good word either of limitation or purchase and that it be the intention of the  testator which make it either the one or the other now in this case it seem  that by the concomitant clause the testator intend a estate for life to the  two sister and no large a estate and therefore to construe it a estatetail  will be to control the intention of the say testator two judge be of opinion  that it be a estatetail the chief justice doubt modern report er p