case oat against Jackson refer to do d Phipps v Lord Mulgrave t r distinguish  Jeffere v Honywood mad follow bridge v Yates sim refer to Stokes v heron Cl  fin Kenworthy v ware hare discuss in re moil estate lr ir on a devise to a for  life and after her death to b and to the child of her body beget or to be  beget by c her husband and to their heir for ever if one child be bear at the  time of the testator decease this create a jointtenancy between b and her  child SC stram this be a action of trespass and ejectment in which the  plaintiff declare that Elizabeth Hattersley on the first of October in the  thirteenth year of George the second demise sixty acre c to the plaintiff to  hold to he and his assign for seven year c by force whereof he enter and be  possess until the defendant enter and eject he to this the defendant plead the  general issue and at the last assize at York a case be make for the opinion of  the court the case state that Ralph clay be seize in fee of five close of  meadow and other the premise in the declaration mention and by his will date  the eight of January devise the premise in the word follow as for touch and  concern the five close of meadow call Woofspark I give devise and bequeathe  they to Annabel my love wife for and during the term of her natural life and  from and after her decease then I give and bequeathe the say close land and  premise to Isabel Addingham my daughter and to the child of her body beget or  to be beget by William Addingham and to their heir for ever in April the  testator die seize of the premise without make any alteration in his will on  his death Annabel his wife enter and continue in possession until her death  which happen the fifteen of August Isabel at the time of make the will have by  the say William Addingham her husband a daughter name Elizabeth and after the  make the say will have several other child by the say William Addingham  videlicet a daughter Isabel bear soon after the testator death who die without  issue and several other all of who die without issue except Elizabeth the  daughter of Isabel Hattersley the daughter bear at the time of make the will  who die in without issue Annabella marry Thomas Hattersley who die the nine of  march leave issue a daughter Elizabeth Hattersley the lessor of the plaintiff  the testatrixs daughter enter into possession of the premise after the death  of her mother to who they be devise for life soon modern after the husband die  and she marry Matthew Jackson by who she bad issue Matthew Jackson the  defendant her heir at law Isabel marry survive all her child by her first  husband and die the eleven of July in possession of the premise and on her  death Matthew Jackson her son enter against who this ejectment be bring by  this Elizabeth Hattersley Matthew Jackson the defendant title be as heir at  law to his mother Isabel Elizabeth Hattersley who be lessor of the plaintiff  derive her title as granddaughter to Isabel Addingham that be to say daughter  of Annabella Hattersley who be the only child of the say Isabel by William  Addingham her husband that bad issue the point reserve for the opinion of this  court be what estate in the premise passes by the will to Isabel the  testatrixs daughter and to her child Dennison for the plaintiff there be but  one way of construction that can serve the defendant purpose and that be that  Isabel take a estate of inheritance in feesimple for without such estate the  defendant can have no title on the other hand if Isabel by the will take a  estate in special tail then the right to the premise be in her granddaughter  Elizabeth Hattersley the lessor of the plaintiff as heir in special tail or if  the fee be in the child of Isabel the lessor of the plaintiff even in that  case have a good title first I shall consider whether this limitation in the  will to Isabel and the child of her body beget or to be beget by William  Addingham do not modern er p create a estate tail in Isabel because this seem  to be the most natural construction of this will it must be observe that at  the time of make or the will Isabel have one child live name Elizabeth and all  the other child of Isabel be bear after the death of the testator and on this  accident it bath be think by some that this case be similar to wild case   a  but notwithstanding Isabel bad a child bear when the will be make yet this  case differ very great from wild case as to that case I own the principal case  there have be always allow to be law though some other matter in it have be  often doubt by some I will state the principal case there and compare the  present case with it in that case land be give to a for life remainder to b  and the heir of his body the remainder to Roland wile and his wife and after  their decease to their child Roland and his wife have then live a son and a  daughter and the court be of opinion that Roland and his wife can have no  estatetail by construction because they say have it be in a conveyance it will  have be only a estate for life and as his intention do not appear to have it  take effect contrary to the rule of the law therefore they be of opinion that  Roland and his wife have no estate for life remainder over to their child  modern then bear this case of wile be take notice of by my Lord hale in vent  and he give this account of it he say the reason why it be hold there to be a  estate for life in wile and his wife be first because have limit a remainder  in tail to b by express word that be to say to b and the heir of his body if  he have mean the same estate in the second remainder it be likely he will have  use the same word second it be not after their decease to the child of their  body for if so there will have be a eye of a estatetail that be it will have  look like a estatetail now in our case the devise be to the child of her body  beget three the principal reason be because there be child in be at the time  of the devise I observe in the first place that this ease of wile be a great  while ago and the court then have not go so large into the consideration how  far the word child may be a word of limitation and therefore in wild case  there be a son and a daughter live and no intention appear that the testator  intend any other than a estate for life in the child the court will not extend  the construction any far than what be agreeable to the rule of law and it be  agree in wild case that if it have be limit to the child of their body it will  have be a estatetail and the case in and prove it there the devise be to  William the son for life and after his death to the man child of his body and  there it be hold to be a estatetail and though my Lord coke say for he cite  this case in wild case that it do not appear that the testator have any issue  male live at the time of the devise and therefore for that reason it be  adjudge a estatetail yet on look into the report of the case in and and more  there be not any notice take of this thing or anything that show that this be  the reason of the judgement nor any distinction in the book whether there be  or be not child live at the time of make the will and certain the word man  child of his body will include all the child and therefore whether he have or  have not child at the time of make the will can raise no difference and it  seem that hale in the case of king v mell argue from the manner of limitation  be to the child of the body or issue of the body beget which say be be phrase  agreeable to a estatetail the word child in this will be a word of limitation  for the word heir issue or child in a will be sometime word of limitation and  sometime word of purchase but they be one or the other mere to answer the  intention of the testator the word heir or heir male natural and ex way  termini in legal construction be word of limitation and yet sometime in will  be word of purchase that be prove by archer case   Rep so the word issue be  sometime use as a word of limitation as in the case of king v mell and  sometime it be use as a word of purchase as in the case of backhouse v well  and so the word child in wild case be use as a word of purchase and yet it be  there agree that modern it may be a word of limitation if the devise have be  to Isabel and her child on her body beget by her husband without go further it  will have be clear a estatetail in Isabel modern er p second the next  consideration will be whether these additional word of limitation and to their  heir for ever graft on the other word in the will to the child of her body  beget show that these word can be consider as word of limitation but as word  of purchase possible it may be say to be like the case of backhouse v well Eq  Abr ld ray Mod Mod fort pale yellow SC cite stram a where the limitation be to  John barber for life only and after his decease to his issue male and the heir  male of such issue male but in that case there be a express devise for life  and the next limitation to the heir male or issue male which be take in that  case to be nomen singular and to be word of purchase by reason of the  additional word annex to they but in the present case the limitation be not to  Isabel for life and after her decease to her child but it be to Isabel and the  child of her body which therefore can be take to be word of purchase but must  be take to be word of limitation and the subsequent word and to their heir do  not make any alteration or enlarge the estate first give but by the word heir  must be intend such heir as be capable of take under the limitation in tail  that so the will may be consistent and this construction be not a new one but  it have be hold in other instance that limitation of this kind have not be  take to enlarge the estate but that the word heir have be take in a limit  sense there be case to show that the word heir be not always to be take  general but with reference to the precedent word as in more land be devise to  one and the heir male of his body and if he die without heir of his body that  the land shall remain to a stranger and it be adjudge that the word heir of  the body in the condition shall not enlarge the precedent estate in tail male  but shall be refer to it and it be so lie down as a rule in   therefore in the  present case Isabel have a estatetail by the first point of the limitation and  if so then those Iatter word and to their heir will not make any alteration or  enlarge the estate and therefore these subsequent word must be consider  agreeable to the limitation in tail and the word their heir must mean such  heir as be capable of inherit by the tail the case of Goodright v pull mich  term Geo I bar king b Eq Abr ld ray stram b be that Nicholas Lisle by will  devise land to his wife for her life and after her decease then to his kinsman  Nicholas l during his life and after his decease then to his heir male of the  body of his kinsman n l to be beget and to his heir for ever then the will go  on with other immaterial modern limitation and the question be what estate n l  have and the court be of opinion that this be a estatetail in n l by reason of  the limitation to the heir male of his body and that the word his heir for  ever make no alteration at all the only difference between that and the  present case be that the limitation there be to the heir male of the body of n  and his heir for ever and here it be to the child of the body beget by William  Addingham and to their heir for ever and the word child can make no material  alteration in construction because the child of the body in a will be the same  as heir of the body in a deed therefore the present case be in effect the same  as if the premise have be limit in a deed to Isabel and to the heir of her  body beget by William Addingham in which case the additional word and to his  heir for ever will make no alteration see also legate v jewel Peer wms morris  v Legay burr Minshull v Minshull atk wright v Pearson Fearne c r Amb king v  burchell term Rep den v Perchey term Rep a and there be no more reason why the  addition of these word and to his heir for ever in this case shall make any  more alteration than they do in the case of Goodright v pull in which case it  be determine that they do not make any alteration at all see Blandford v aplin  term Rep b it be impossible the testator ever can intend to devise his estate  to Elizabeth who be the only child then bear for first she speak of child in  the plural number but the strong reason be that she never intend to exclude  the afterborn child but if this word child be con modern er p sidered as a  word of purchase then Elizabeth be the only child then bear she only can take  by purchase and the consequence will be that all the other child afterborn  will be exclude from take under the will and the estate will go to the heir  general of the child then live this construction can never be imagine to be  agreeable to the intention of the testator this inconvenient construction be  the real ground of the opinion of Lord hale in the case of king v mell Eq Abr  keb vent lev salk Pollexf lev Ent c be observe there that the estate be give  to Barnard for life and after his decease to the issue of his body lawful  beget on a second wife and for want of such issue there be as much reason to  provide for the issue of Barnard issue as for the first issue and because the  testator intend that the estate shall not go over to John mell so long as  there be any issue of Barnard therefore the intention of the testator be  overbalance by that and therefore it be hold that Barnard have a estatetail so  here if the word child be consider as a word of purchase the estate will vest  in Elizabeth only and it will go to her heir general and all the other child  will be exclude this inconvenience be likewise consider in the case of  Goodright v pull modern thus far I have consider the devise as limit a  estatetail to Isabel and if this be right then the lessor of the plaintiff  have a good title as heir in special tail but in order to make out the title  under the will to be out of the lessor of the plaintiff and in the defendant  it have be conceive by some that Isabel and her child who be bear at the time  of make the will take a joint estate in fee and consequent Isabel have survive  her daughter Elizabeth the inheritance of the whole estate have vest in her in  fee this construction be already answer by consider the inconvenience arise  from the supposition that this word child be to be consider as a word of  purchase but in the case of cook v cook vern a where a devise be to the issue  of I S who then bad a daughter live and afterward have a son bear the then  Lord keeper be of opinion that all the child shall take and even grandchild if  there have be any and although upon the death of the testator there be then  only a daughter bear yet upon the birth of another child the estate shall open  and take in the afterborn son then on this way of construe the will the  inheritance be in the child of Isabel beget by William Addingham the lessor of  the plaintiff who claim as the only survive grandchild of that marriage have a  good title but it be object that this be a joint estate in Isabel and her  child the consequence of which be that this estate will go to the heir general  of Isabel by a aftertaken husband and this will defeat the intention of the  testator for the issue of that very marriage which the testator by his will be  provide for will be cut off by this construction for Isabel marry again and  the now defendant be the son of that second marriage therefore upon the whole  it must be submit that whatever construction be make of the will the lessor of  the plaintiff have a good title as heir in tail or if by reason of these  additional word and to their heir it be not a estatetail even in that case the  inheritance be limit to the child the lessor of the plaintiff have a good  title Bootle sergeant on the other side after have state the case as above say  that Mr Dennison bad in vain endeavour to distinguish this case from wild case  Eq Abr   more b have cite no case to make out this distinction but only say  that that case be of a long stand and that the law be now alter but it be  impossible to construe this to be a estatetail in Isabel as it appear there be  child live at the time of make the will for such a construction will overthrow  many resolution in the book and the authority of wild case in this point be  never question the word of the book be as full and strong as possible to this  purpose and be against Mr dennison construction the word be these if a devise  land to b and to his child or issue and modern be have not any issue at the  time of the devise that the same be a estatetail for the intent of the devisor  be manifest and certain that his child or issue shall take and as immediate  devisees they can take because they be not in a thing naturan and by way of  remainder they can modern er p take for it be not his intention for the gift  be immediate but if a man devise land to a and to his child or issue and they  then have issue of their body there his express intent may take effect accord  to the rule of the commonlaw and no manifest and certain intent appear in the  will to the contrary and therefore in such case they will have but a joint  estate for their life from hence it appear that the word child in the present  case accord to this resolution can be consider as a word of limitation because  it be direct contrary to the rule of law as state here that child live at the  time of make the will shall take by way of limitation since then the word  child in the present case must be take to be a word of purchase it follow that  the subsequent word and to their heir for ever must give a joint estate in fee  I shall therefore contend first that the mother and her child take a estate in  fee as jointtenants Lord CokeCo light a be express that where b have diverse  son and daughter a give land to b et book nest and to their heir the father  and all the child do take a feesimple joint by force of these word and their  heir for ever make it a joint estate in fee and these word on the body of her  beget or to be beget by William Addingham shall only be consider as a  description of what child shall take and the child bear after the death of the  testator shall take joint with their mother and the child bear in the life of  the testator for on the birth of other child the estate shall open and take in  such afterborn child this be the natural construction to be put on the word of  the will and by this all the word of the will be take in and will be answer  and there be no occasion to reject any of they but they be all take and  consistent with the rule of law for this purpose I shall cite the case of cook  v cook vent b which Mr Dennison mention for another purpose there the devise  be to the issue of I S who then bad a daughter live and afterward bad a son  bear and the question be who shall take and what estate and the Lord keeper be  of opinion that all the child shall take and even grandchild if there have be  any but they shall take only a estate for life and although the devise be to  the issue beget that make no difference the word beget and to be beget be the  same as well upon the construction of will as settlement and take in all the  issue afterbegotten and although upon the death of the testator there be only  a daughter bear yet upon the birth of another child the estate shall open and  take in the afterborn son but he make a distinction of a personal estate for  by a devise of that to a man and his child a child bear modern after the death  of the testator shall not take and there be also put this case a devise to the  issue of b and for want of such issue to c d have a son and a daughter they  shall take only as person describe and have only a estate for life although  the subsequent word for want of such issue seem to imply a estatetail the only  difference between this case in Vernon and the case now before the court be  this that the devise there be to the issue of I S and there be only one child  live and another child bear afterward and it be hold that they shall take a  joint estate for life here the devise be to Isabel and to her child on her  body beget or to be beget by W a and these last word be only descriptive and  therefore it will have be the same thing if the testator have only say to her  and her child the only difference therefore between these case be that in the  case in Vernon the word issue be use and in the present case the word be and  to her child now issue have be hold to be more respective than the word child  for issue will take in grandchild but child will not that be determine in  tiler case now this be so then I ask how this case now before the court can be  distinguish from that case of cook v cook here the devise be to Isabel and to  her child and there be a child then bear it be impossible that this accord to  the construction of law can be a estatetail in Isabel but the estate vest in  the mother and the child there bear and when the afterchildren be bear the  estate open and let they in that a estate may open on a contingency be no new  thing for in the case of Purefoy v Roger Eq Abr sand lev keb b the chief  justice hold that true it be where a estate in be and a contingent remainder  with modern er p a remainder over to he who have the first estate in be be  limit by one and the same conveyance and here they be by the same will there  the remainder in be shall vest till the contingent remainder come in be and  then the estate shall open and disjoin to let in the contingent remainder  because they be all create by the same conveyance and therefore the estate  shall open and disjoin as they be appoint by the original conveyance as to the  case that have be cite to prove it a estatetail in Isabel there be not any one  case where the child be live at the time of make the will Mr Dennison have not  put any one case where the limitation be to the devisee and his child and the  child be live at the time of make the will and this case turn on that and to  get over that distinction must overturn the resolution in wild case which be  express that where there be child live at the time of the devise it can be a  estatetail and if the testator do intend it so yet the law will supervene his  intention wild case be express that it can be a estatetail and if it can be a  estatetail then I submit it that it can operate in no other way but in the  manner I have put it and it must be consider as a joint modern estate in the  mother and in the child and the limitation to their heir for ever make it a  estate in fee this be the only point that I rest it on and the case in Vernon  be a express authority for I and for these reason I submit it that the lessor  of the plaintiff have no title Mr Dennison in his reply say that he have  always understand that the case of cook v cook have be often deny on the other  side the hall but Bootle sergeant insist that it have be always allow and that  it have be cite and rely on in the case of glenorchy v Bosville case t t a lee  chief justice this case appear to I to be a case of a good deal of difficulty  upon the construction of this will the construction Mr Dennison put on it if  the rule of law will admit it seem to be that which best answer the intention  of the testator for undoubted be intend this estate as a provision for his  wife and after her death for Isabel his daughter and her issue by William  Addingham consequent either of the construction put upon the will by Mr  Dennison will answer that intention on the other side my brother bootle  construction ground on the case that have be cite do certain defeat that  intention for by his construction the estate must have be carry away from the  child of Isabel by William Addingham to the child she have have by a second  husband but however if the authority and rule of law require it we must put  this construction on it but if Mr dennison construction can be maintain on the  foot of the resolution that have be cite that will be the construction that  will best answer the intention of the testator by give Isabel a estatetail and  by these latter word CC and to their heir to confine they to such heir as be  before mention that be the heir of her body but certain if a estate be give to  one and to her child she have child at that time it will be a joint estate in  the mother and her child that be certain what be there then to distinguish  this from the present case it appear there be only one child in be at the time  of the devise take it then accord to the case of cook v cook which there seem  to be a good foundation for take it that where there be a child in be at the  time of the devise and other child be bear afterward that the child bear after  shall be admit to take that precedent show that under the description of a  devise to child not only child then in be but also child bear afterward must  be consider as exist because the estate open to let in these subsequentborn  child which seem to speak strong for that expression of a devise to child  import the same thing as if all the child be bear at the time of the devise if  land be demise for life the remainder to the right heir of I S and of I h and  I S bath issue and die and afterward modern I h bath issue and die the issue  be not jointtenants because the one moiety vest at one time and the other  moiety vest at another time   light a sergeant Bootle say that it be mention  that they be jointtenants but whether that be on a accurate consideration will  be a matter of further consideration on a future argument it may be also a  matter of consideration how repugnant this construction be to what seem to be  very strong the intention modern er p of the testator and whether these word  and to their heir may not in point of construction be restrain to the child  only without carry it to the mother as well as to the child and if so then she  will have a estate for life only I do not mean to give any opinion these be  matter that appear to have difficulty in they I mention they only that the bar  may take notice of they hereafter wright justice though Mr dennison  construction will best answer the intention of the testator as the case now  stand because it bath happen that Elizabeth the daughter be dead without make  any alteration in the estatetail yet take it as it stand at the time of make  the will then the construction Mr Dennison contend for will put it in the  power of the daughter to deprive the child of the estate but take it accord to  sergeant bootle construction that she and the child take a joint estate in fee  then the testator do not give the mother the whole estate but he give the  child a immediate provision and never put it into the mother power to defeat  they of it and it be mere by the accident of survivorship that she take the  whole estate wild case be extreme strong and as to the manner of their take I  think the child take as jointtenants and I apprehend that the child be  consider as if they be all in be at the time of make the will I will not be  understand to give any opinion at all but only to take notice that though by  accident Mr dennison construction will best answer the intention of the  testator yet it seem at the time of make the will it will not better answer  the intention than that other construction lee chief justice I remember    light in the chapter of Jointenants state that where the person take by the  same title yet take at different time they shall not be jointtenants except in  one case put of a feoff make by a man to the use of himself and of such wife  as he shall afterward marry for the term of their life and after be take a  wife in that one instance they be jointtenants and yet come to their estate at  several time this be a matter that I think deserve further consideration lee  chief justice in Michaelmas term in the sixteenth year of George the second  deliver the opinion of the court in this case and after have state the case to  the same effect as the counsel bad do on the former argument he say the  question in this case for the consideration of the court be what modern estate  or estate pass by the will of r Clayton to Isabel his daughter and to her  child the land in question be by the testator devise to his wife Annabella for  and during the term of her natural life and after her decease to his daughter  Isabel Addingham and to the child of her body beget or to be beget by William  Addingham and to their heir for ever it appear by this state of the case that  at the time of make the will Isabel Addingham have issue by William Addingham  one daughter call Elizabeth and the question be what estate pass by the will  to Isabel the daughter and to the child of her body beget or to be beget by  William Addingham on the former argument it be insist on for the plaintiff who  claim as heir at law to the young laughter of Isabel that Isabel take a estate  for life only and that the daughter take the remainder in fee under the devise  to Isabel and to her child beget or to be beget and to their heir but as to  this there be nothing in the will from which it can be infer that this be the  intention of the devisor but the contrary because in another part of the will  where he intend to give a estate for life only he have give it in express term  to his wife for and during the term of her natural life but be bath not so  express himself in that clause of the will in which he devise his estate to  his daughter and as to this the case in   light seem to be very strong the  word of the book be b have diverse son and daughter a give land to b et book  nest and to their heir the father and all his child take a feesimple joint by  force of these word their heir but it be endeavour to consider this case in a  different light by restrain these word and to their heir to the child only and  therefore it be say that only a estate for life be vest in the mother and that  the fee be give to the child because the word their heir be to be restrain and  refer only to the child but this be contrary to   Litt for accord to the case  above mention they all take a estate in fee joint it be true it be take notice  of in that case   light that if be to who the feoff be there make have bad no  child at the time of the feoff the child bear modern er p afterward shall not  have take but that observation will not affect the present case because it be  state that there be a child and therefore such child may take under the  expression of child for so in the case of for there the sum of fifteen hundred  pound be devise to the child of a who have only one child and it be hold that  a child shall take this money by this description and if this be so then in  this way of consider the case by the devise to Isabel and to her child beget  or to be beget by William Addingham a fee passes to Isabel and the child she  then have joint and consequent Isabel survive that child have a fee in her and  as to the defendant it be immaterial whether the child bear after the testator  death can be let in to take or not because Isabel survive they also therefore  here be a plain title in the defendant as heir at law to Isabel in who the fee  vest by survivorship judgement be accord give for the defendant