carter richardson versus chilcott argue per Windham sergeant pro to express  grief broom pro to ward off ejectment S c carter ejectment for the moiety of  the manor of Hedgly of the demise of William pierce for five year upon not  guilty plead a special verdict be find Roland hind be seize of the whole manor  of Hedgly in his demesne as of fee and have issue William and Roland and two  daughter Ann and Elizabeth this Roland hind do you James by deed execute do  feoff Christopher baban and Thomas Billingsley and their heir of all the say  manor to the use of the say Richard hind elder for life the remainder to the  use of William hind his old son for his life the remainder to Christopher  baban and Thomas Billingsle and their carter er p heir till one of the son of  William hind shall accomplish his age of ten year for the benefit of such son  and after the death of Roland hind the elder and William hind and after that  one of the son of William hind shall accomplish his age of ten year then to  the use of the first son of William hind the elder and the heir male of his  body and for default of such issue to the use of other son of the say William  hind successive and for default of such issue to the use of Roland hind the  young for life and after to his first son and the heir male of his body and so  to his other son successive and for default of such issue to the use of his  daughter and in default of such issue to the daughter of old Roland in tail  the remainder to the right heir of Ann and Elizabeth the daughter of Roland  hind the elder with power for William and Roland tenant in possession to make  jointure William die without issue of his body in the time of Roland the  father Rowlandthe father die the first day of march James leave Roland his son  Ann and Elizabeth Ann I Jan car marry William Bettar and they two Nov car for  do bargain and sell the moiety of this manor to William pierce and his heir  and therein be a covenant to levy a fine and a fine be levy hill car I accord  and die without issue soon after they find William pierce September and  William pierce his son lessor of the plaintiff seize prout law postulate  Roland the young die a without issue after the death of Roland the young  William pierce the son enter they find Elizabeth the survive child of old  Roland march marry Thomas Billingsle and die leave one daughter call Katherine  Katherine after the death of her mother and after the death of Roland hind the  young and before the ejectment do enter and put out William pierce the son and  they find that Katherine be seize c and so be seize marry William chilcot the  defendant carter Windham sergeant pro to express grief the question will be  this what estate will have vest in the feoff if the contingency have take  effect in case that William at the time of his decease have have a son within  the age of ten year I conceive they shall have have but a term for year the  word be to Roland for life and then to William for life and after to the use  of Christopher baban and Thomas Billingsley and their heir until one of the  son of the say William hind shall accomplish the age of ten year and after the  decease of Roland the elder and William and after one of the say son shall  accomplish the age of ten year then to the use of the first beget son of  William and so to the other son with remainder over it be thus limit not till  he have a son but till one of his son shall accomplish his age of ten year it  be find that he die without issue in the life of his father this shall raise  no estate it shall not raise any feesimple as they intend it be a possibility  and he die without issue the contingency do cease and now no estate can rise  to they and if so then by the deed and fine the land be well transfer to the  lessor of the plaintiff first if this contingency have happen what estate  shall the feoff have have I conceive it be not every limitation that be to the  heir that alter the nature of a estate though it be limit to the feoff and  their heir it make it not a feesimple what be after qualify to a term for year  Rep Lovies case p if he have limit it to they and their heir for so many year  as shall be from such a time till such a time it have be but a term now  whether this that be experts in this deed do not amount to a certainty ex post  facto with Rep foe bishop of bath case in our case there be no certain time  limit but by matter ex post facto it be reduce to a certainty for he do limit  it from the death of William till one of the son of William shall attain to  the age of ten year when it be to take effect it will be certain how long it  shall continue if there shall be some uncertainty yet it will make no more  than a particular estate as if it be for the raise a sum in sir though lake  case a fine levy to a and b and their heir during the life of sir Thomas lake  so a man limit a estate to one and his heir during four life it be hold though  he limit it to he and his heir yet be during the four life it be no fee no  more than in Seymors case such a limit estate will not binder the raise of  future use object here shall be a fee for it be limit to the feoff till his  son shall attain the age of ten year and he never do and therefore they have a  fee now the estate stand in the feoff and all the subsequent remainder be void  resp upon the death of William without issue there arise no estate at all for  carter er p if it shall be so it will upon the matter overthrow the whole deed  and all the subsequent use it be make for the advantage of all his subsequent  child the law will make such a construction as shall stand with the intention  of the party appear in the deed it do appear here carter he have two son and  two daughter and he do intend it for the advancement of they and their child  the law shall not make a construction that it shall be a feesimple to carry it  away from the child but a particular estate and so for the benefit of the son  that be leave we ought to make such a construction as all the part of a deed  may stand together a estate limit by way of use though the law will not favour  it so much as a will yet the law have a great respect to it use be but thing  in equity at commonlaw before the statute and then they be guide much by the  intention of the party apparent in the deed upon the word themselves I  conceive this will fall out not to be a feesimple but upon his death it will  vanish away it be not till William shall have a son that shall attain to the  age of ten year for that will be strong but the word be till one of the son of  William shall attain to the age of ten year in the expression of a affirmative  there be imply a negative as in this if William shall not have a son nothing  shall arise at all quod unavoidably subintelligitur non to be away till one of  the son of William shall attain to the age of ten year it be necessary  understand that he must have a son it be a condition employ as it be before  the estate can rise to the feoff first there must be a son and then the  question be how long it shall continue till he come to the age of ten year Rep  Borastons case again the word be he do declare it to be to these feoff for the  benefit of that son then there must be a son for if there be no son there must  be no benefit again if there shall not be such a construction in the first  word yet the second limitation will take it off its limit to the first and  second son and then to the daughter and for default of such issue that be of  William admit there be any thing upon the first word now when this limitation  come for default of such issue that be if William die without issue then he  limit it to Roland his second son and his first son and the heir of his body  and in default of such issue to the daughter the feoff and their heir shall  not carry it to stranger if William have no child it be intend to go to Roland  and after Roland if he have no child then to the daughter of old Roland  another thing where it be express limit that which he declare for the benefit  of his son between the death of William and till his son come to ten year of  age the law shall not make another construction to defeat the conveyance that  be to make one kind of conveyance if he have a son and another kind of estate  if he have none they will have it a feesimple and carry it to the feoff and  then a particular estate will not hinder the execution of a use the limitation  be to Roland for life after to his first and second son and the heir of their  body successive and then to the daughter of Roland and then after to the  daughter of old Roland and the remainder to the right heir of Ann and  Elizabeth here be a contingent use that be limit after the death of the first  and carter second son this the law will allow well enough it may be object  here be a contingent estate here may come in another daughter I answer it will  be the same reason one or more do not make the contingency more or less thus  the estate which go over which be if Roland die without issue then it be limit  to Ann and Elizabeth and the heir of their several body be a estate vest in  they in tail and after he come for default of such issue to the right heir of  Ann and Elizabeth a estate be limit to one for life the remainder in tail the  remainder to the right heir of tenant in tail as it be in Shelleys case this  be execute in they that have the particular estate for it be to the daughter  of old Roland with the remainder to their right heir if there be not a estate  vest in Ann at the time when she levy the fine then pierce can take nothing  now there be a remainder limit to her and her sister in tail with remainder to  their right heir then upon the resolution in shelly case here be a estate in  tail limit to they the remainder to their right heir though by another name it  be all one as if it have be limit to they and their heir then this be execute  by the deed and fine for the moiety in the father and from carter er p he it  descend to his son the lessor of the plaintiff and I pray judgement for the  plaintiff broom sergeant pro to ward off we pitch upon the same point whether  this estate vest in the feoff the contingency never happen or whether there be  such a estate in the moiety of the land in Ann and her husband which they may  pass away the question be between Katherine heir at law only daughter and heir  of Elizabeth the only survive child of old Roland who only have issue and  William pierce assignee of Ann and her husband the whole matter depend on the  consideration of the case old Roland have two son and two daughter William and  Roland Ann and Elizabeth Elizabeth marry Billingsle one of the feoff and by  her have issue Katherine William and Roland and Ann die without issue William  Roland nor Elizabeth do no act at all to alter the estate Ann and her husband  make a bargain and levy a fine of the land in question to William pierce  Roland the young then live so that whether this fine can pass the reversion of  this estate expectant upon the death of Roland the young be the question I  conceive all these remainder be mere dependent upon this contingency for  William die in the life time of his father and the contingency never happen  and then nothing can determine the estate that be in the feoff and then the  estate can never come to Ann the estate be vest and can determine till the  contingency happen and not as my brother suppose it be not a precedent  condition as for Lovies case that case be deny in my Lord Andersons report  here be no certain time it be limit to they and their heir till one of the son  of William shall attain to his age of ten year this be a contingency nay a  double contingency first he must have a son second that son must be ten year  of age before the estate in the feoff can determine Rep foe carter Lovies case  light sect where a estate be by limitation it shall continue till it be  determine Plowd Plowdens Com Walsingham case dyer foe b if a feoff be make to  one and his heir while I S shall pay to the feoff or to his heir a thousand  pound and I S before any payment make die the feoff and his heir shall retain  the land absolute for ever this be a strong case than we object if this estate  shall continue in they all the remainder will be defeat resp I answer as my  Lord Hobart do upon another occasion hob foe the rule of law must not be guide  by the improvidence of other that great case in Westminster hall be settle  upon a family for several use and the word shall stand seize be omit a mere  slip of the pen and there be no relief in law or equity but he be feign to  have it relieve by Act of parliament now to the other to the use of the  daughter of Roland hind the remainder to Ann and Elizabeth and the heir of  their body and then to the right heir admit this estate out of the feoff here  will be a joint estate for life and several inheritance I take a difference  when the use be limit to all and every the daughter of Roland hind the elder  and when it be limit to Ann and Elizabeth and the heir of their body and for  want of such issue to the right heir of Ann and Elizabeth though Elizabeth and  Ann do fall out by event to be the heir yet at the time of the limitation it  be uncertain whether they shall be so when the remainder shall fall I think  the person must be certain at the time of the fall of the remainder who they  shall be Bridgman chief justice be Ann and Elizabeth bear at the time of the  conveyance be it so find by the verdict broom yes Bridgman then this will be  to little purpose tenant in tail bargain and sell nothing passes but for his  life but a fine come afterward the fine do work upon the estate and make it  more last whereas before it be but for his life now the estate be to he and  his heir so long as be shall have heir of his body Seymors case report broom  now in our case Ann be dead without issue her moiety of the land come to  Billingsle and Katherine per dissent and then the plaintiff have no title I  pray judgement for the defendant Bridgman if a limitation have be to the use  of Ann and Elizabeth and all other the daughter of Roland hind the elder and  the heir of their body with remainder to Ann and Elizabeth and their heir have  this be execute broom carter er p its a strong case because they be name by  dame Bridgman when the conveyance be make to the use of all the daughter of  Roland hind have or shall have and with a remainder in fee to Ann and  Elizabeth now admit there be more daughter whether the feesimple be execute in  Ann and Elizabeth admit there be a estate settle in they in tail at the time  of the limitation and other in contingency when the contingency be after the  estate tail whether it shall be in they as at first Adjornatur