case robert Fitzgerald and other appellant james Leslie and other respondent  that February that February Mews dig xv see Eden v Wilson h l c a by will give  all his real and personal estate to trustee in trust for the payment of his  debt and legacy and then to the use of his old son I and his heir for ever and  fail issue of his say son I then to the use of his second son l and his heir  for ever and fail issue of that son to his three son g and his heir for ever  and fail issue of that son then to the use of every other son that I shall or  may have and their heir for ever and fail my issue male then to the use of my  issue female and their heir for ever hold that accord to the intention of the  testator his son take successive a estate in tail male and that upon the death  of the old son leave only a daughter the second son take in the order of  succession Daniel Lord viscount Clare of the kingdom of Ireland be seize in  fee of diverse land tenement and hereditament in the barony of Jraghty conner  in the county of brown er p kerry original comprehend under the two grand or  principal denomination of the manor town and land of Tarbert and the town and  land of Tyraclea but afterward know by the follow sub denomination videlicet  the town and land of Carhunecunnelagh otherwise Carhunegallen the town and  land of Lissi the town and land of Cahirgill the town and land of Mealcaneagna  otherwise Mealcaneightra the town and land of Ballina Sagart and the town and  land of Carhugariffe otherwise the two plough land of Tarmons the town and  land of Gorteengal the town and land of Mealcanaughtra and the town and land  of Glancullear all which be part and parcel of the before mention land  distinguish by the principal denomination of Tarbert and Tyraclea and be  situate within the limit of the say manor and never be repute principal or  distinct denomination from the say two grand denomination of Tarbert and  Tyraclea the say Lord viscount Clare be so seize by deed date the that of  April in consideration of pound convey all the say land and premise by the  general description of the brown manor town and land of Tarbert and half  plough land of Tyraclea in mortgage to sir Stephen rice and his heir  redeemable on payment of pound with interest and in the mortgage deed the say  manor of Tarbert be describe as contain acre and in the covenant against  encumbrance there be a save of the several lease make of several part of the  say manor by Lord Clare and particular the two plough land of Tarmons  videlicet Ballina Sagart and Carhugariffe in the d year of William and mary  Lord Clare be attaint of high treason for have be engage in the rebellion in  and after his attainder a commission issue and a inquisition be take thereon  in the that year of the same reign by which the juror find that sir William  king in trust for Lord Clare and for Henry Jevers be seize in fee of the manor  of Tarbert contain acre profitable land and of the half plough land of  Tyraclea and they likewise find the say mortgage to sir Stephen rice by virtue  of this attainder and inquisition all the say land and premise become vest in  the crown under the general description only of the manor of Tarbert and the  town and land of Tyraclea which be the grand or principal denomination and  several other estate in the county of cork be likewise vest about the same  time in the crown by virtue of the attainder of Coppinger and a inquisition  thereon have king William III by his letter patent date the that of November  in the that year of his reign in consideration of the faithful service of dr  John Leslie great grandfather of the appellant Lucy perform by he in the siege  of Londonderry during the rebellion in Ireland be please to make he a grant in  fee of all the say land and premise in the county of kerry and cork in which  grant the estate in the county of kerry be not only describe by the two  principal denomination of the manor of Tarbert and land of Tyraclea but all or  most of the sub denomination of the same land be likewise particular mention  and by this grant a quit rend of pound Payable to his majesty his heir and  successor be reserve yearly on all the say land in the county of kerry as be  comprehend under the two general or principal denomination before mention dr  Leslie be so seize in fee of the say land in the county of cork and of the  equity of redemption of all the say other land in the county of kerry die  intestate in leave James Leslie Esq the appellant Lucy grandfather his old son  and heir upon who all the say land and premise descend in fee subject to the  mortgage original make to sir Stephen rice which afterward become vest in  Deborah Fitzmaurice widow James Leslie in mortgage the land in the county of  cork to James Caldwell for secure pound and interest and afterward in January  make a subsequent mortgage of the brown same estate in fee to John lap for  secure the further sum of pound and interest Mr Leslie have issue John his old  son the appellant Lucy father and the respondent James Leslie and also George  Leslie his two other son together with a daughter and a wife then live who be  enseint on the that of November make his will and thereby devise his estate in  the word follow I leave and bequeathe all my real and personal estate to my  good friend John sand gentleman my brother the reverend Mr George Leslie and  to my belove wife Sarah Leslie during her widowhood in trust and to and for  the use hereafter mention videlicet to and for the brown er p payment of my  debt and also for the payment of my legacy hereafter mention and after my debt  and legacy be pay then to the use of my old son John Leslie and his heir for  ever and fail issue of my say son John then to the use of my second son James  Leslie and his heir for ever and fail issue of that son then to the use of my  three son George Leslie and his heir for ever and fail issue of that son then  to the use of every other son that I shall or may have and their heir for ever  every such son to be prefer accord to his priority of birth and age and fail  my issue male then to the use of my issue female and their heir for ever and  for want of issue female then to the use of my heir for ever and after give  his wife a annuity of pound during her life the testator appoint the say John  sand George Leslie and his say wife during her widowhood executor of his will  in the year the testator die and upon his death the say estate in the county  of cork and kerry vest in the say John Leslie his old son and heir as tenant  in tail general under the devise in the will and he enter upon and possess the  same accord and afterward in a treaty of marriage be set on foot between he  and whether Crosbie the daughter and only child of William Crosbie Esq who  agree to give a portion of pound with his say daughter by article make  previous to this marriage date the that of October in consideration of the  marriage and portion of pound the say John Leslie agree to convey all his say  land tenement and hereditament in the county of kerry and cork which land in  the county of kerry be therein describe and mention by the several  denomination of the manor town and land of Tarbert Tyraclea Kilmurrilly  Shanovah Doonard Carhunagh Glanfillagh Kilcolgan Rallopane Coolanonine tarmon  and Kilfadoge and all other the land tenement and hereditament of the say John  Leslie in the say county or elsewhere in the kingdom of Ireland with all their  right member and appurtenance to the use of himself for life and after his  decease to the intent that the say whether Crosbie his intend wife shall  receive for her jointure the yearly sum of pound out of all and every the say  land remainder subject to the say jointure brown to the use of the first and  every other son of the say marriage in tail male remainder in default of such  issue to the use of all and every the daughter and daughter of the say John on  the body of the say whether to be beget as tenant in common and not as joint  tenant and the heir of her and their body lawful issue with other remainder  over and it be agree between the party that a sufficient part of the pound the  marriage portion shall be apply in discharge of the principal and interest  remain due on the mortgage original make to sir Stephen rice and for the  better secure and support the several use limitation and trust in a settlement  to be thereafter make pursuant to the say article that the legal estate of all  the say land in the county of kerry comprise in the say mortgage shall be  convey to the say William Crosbie and his heir the marriage soon after take  effect and thereupon the say John Leslie and William Crosbie as of easter term  in the that year of king George I duly levy a fine sur conusance de law come  Ceo etcetera in the court of common plea in Ireland of all the say land in the  county of kerry by the same denomination as in the marriage article unto  pierce Crosbie Esq and his heir for the better assure the say land to the use  of the article and of a settlement to be make in pursuance thereof the  mortgage to sir Stephen rice and the legal estate in the say land in the  county of kerry have by several mesne assignment become vest in Deborah  Fitzmaurice widow by indenture of lease and release date the that and that of  November and make between the say Deborah Fitzmaurice of the first part the  say John Leslie of the second part and the say William Crosbie of the three  part recite among other thing the say John leslie intermarriage with the say  whether Crosbie and that in consideration thereof and of the say pound portion  he have by the article of the that of October covenant to settle the say  mortgage land to the use in the say article and that the sum of pound part of  the say portion shall be apply in discharge of the say mortgage and that the  same shall be keep on foot to support the use in the say article the say  Deborah Fitzmaurice with the consent of the say John Leslie in consideration  of pound be the principal and interest then remain due on the say mortgage  grant and assign unto the say William Crosbie and his heir all the say land in  the county of kerry by the general brown er p name and description of the  manor town and land of Tarbert and Tyraclea be the two grand or principal  denomination of the say estate in the county of kerry as describe in the  original mortgage to sir Stephen rice to hold to the say William Crosbie and  his heir till one or more recovery shall be suffer of the say land comprise in  the say article in the first place to secure pound a year to the say whether  Crosbie as her jointure and also for secure the say land to the say John  Leslie for life and then for secure the several other remainder in the say  article brown the legal estate in the say land in the county of kerry be thus  vest in the say William Crosbie it be agree for the great security that the  say John Leslie shall levy a fine and suffer a recovery thereof and accord by  lease and release date the saint and d of may between the say William Crosbie  and John Leslie of the one part and the say pierce Crosbie of the other part  recite the say mortgage and assignment and that the legal estate in the  premise be vest in the say William Crosbie he thereupon in consideration of  pound S convey to the say pierce Crosbie all the say land in the county of  kerry by the last mention general description or denomination of the manor  town and land of Tarbert and Tyraclea only to the intent to make the say  pierce Crosbie tenant to the prcipe and it be thereby agree between the party  that one or more recovery shall be suffer of the say premise before the end of  the then next Trinity term which shall enure to the use in the say article and  settlement to be make in pursuance thereof recovery be accord suffer of all  the say land in the county of kerry by the name of Tarbert Tyraclea  Kilmurrilly Shanovagh Carhunagh Glansillagh Kilcolgan Rallopane Coolanonine  Tarmons and Killfadoge be the same denomination as mention in the marriage  article in which recovery John wren be demandant the say pierce Crosbie tenant  and the say John Leslie and William Crosbie vouchees who vouch over the common  vouchee by lease and release date the that and that of September make between  the say John Leslie of the first part the say pierce Crosbie of the second  part the say William Crosbie of the three part sir Maurice Crosbie knight and  John Blenerhasset Esq of the four part Thomas Blenerhasset gentleman of the  five part and John wren of the six part recite the say mortgage and the  assignment thereof the say John Leslie in consideration of the say marriage  and of the marriage portion of pound and for settle a jointure on the say  whether his wife and for settle and assure all the say land in the county of  kerry and cork and elsewhere in the kingdom of Ireland to the use after  mention convey all the say land and premise to the say pierce Crosbie and his  heir by the name and description therein mention and particular as to the land  in the county of kerry by the name and description follow videlicet the manor  town and land of Tarbert Tyraclea Killmurrily Shanovagh Doonard Carhunagh  Glansillagh Kilcolgan Rallopane Coolanonine Tarmons and Killfadoge and all  other the land of he the say John Leslie in the say county or elsewhere to the  use follow videlicet to the use of he the say John Leslie for life remainder  to trustee to preserve contingent remainder and after the death of the say  John Leslie to the intent that the say whether his wife shall out of all the  say land and premise receive the yearly sum of pound during her life for her  jointure remainder brown to the first and every other son of the marriage in  tail male successive and for default of such issue to the use of all and every  the daughter of the body of the say John Leslie on the body of the say whether  to be beget as tenant in common and not as joint tenant and the heir of their  body lawful issue and for default of such issue to the use of James Leslie  brother of the say John Leslie and the heir male of his body with remainder  over in which settlement be contain a covenant from the say William Crosbie to  convey the say mortgage premise to such person as the say John Leslie shall  appoint in trust to keep the same on foot in the first place for the better  secure the say annuity of pound and afterward to the several use before  mention and to protect the same from all encumbrance and it be thereby agree  between the party that the say fine levy in easter term of all the say land in  the county of kerry shall enure to the several use therein express and that  the recovery suffer of the say land in the county of kerry and all other fine  and recovery thentofore levy and suffer or to be thereafter levy and suffer of  the premise or any part thereof shall enure to the several use intent and  purpose therein before mention brown er p in John Leslie die leave whether his  wife who survive he and afterward intermarry with the respondent John  Blenerhasset and also leave the appellant Lucy his only child and heir at law  then a minor about six year old but before his death he duly make his will and  thereby devise his whole real estate to the appellant Lucy and appoint his  uncle the reverend George Leslie sole executor thereof and guardian of his say  daughter who upon the death of her say father become entitle to all the say  land and premise in the county of kerry and cork comprise in the original  grant from king William III to the say doctor John Leslie her great  grandfather soon after the death of the say John Leslie the respondent James  Leslie his brother who be the second son of the before name James Leslie set  up his claim to all the say land in the county of cork and to the great part  of the say land in the county of kerry which he insist be not comprehend in  any of the fine and recovery levy and suffer upon the marriage of the say John  Leslie with the say whether Crosbie and that he be therefore entitle to the  same as a remainder man in the will of the say James Leslie for that such  remainder upon the death of the appellant Lucy father without issue male have  immediate vest in he under the say will accord in Hilary term the respondent  dr Leslie exhibit his bill in the court of exchequer in Ireland against the  appellant Lucy and George Leslie son of the say George Leslie her guardian and  against the say William Crosbie pierce Crosbie John Blenerhasset and whether  his wife Robert Leslie John goodman Henry goodman William Connor Daniel Connor  John lap Augustus carry Thomas week and Joseph Bennet and Elizabeth brown his  wife thereby set forth the grant from the crown to dr John Leslie and the will  of James Leslie the appellant Lucy grandfather and that the say John Leslie  the appellant Lucy father die seize in tail male of the premise under the say  will leave the appellant Lucy his only child and that upon his death the  premise have come to he the say respondent and state the several assignment by  which sir Stephen rice mortgage have become vest in the say William Crosbie  and also the mortgage for pound and pound make by the say James Leslie of the  estate in the county of cork and that the first of the say mortgage have by  mesne assignment become vest in Richard goodman who be dead leave the  defendant Hannah goodman and John goodman his executor and the defendant  Elizabeth wife of the defendant Joseph Bennet his niece and legatee who have  assign the say mortgage to the defendant carry and week and that the other of  the say mortgage be become vest in the defendant William and Daniel Connor and  John lap and also state that the say John Leslie the appellant Lucy father be  disable for the reason aforesaid from make such disposition as he have by his  will make of the say land and premise he the respondent have apply to the  appellant Lucy and her say guardian for the possession of the say land and to  the say William Crosbie for a assignment of sir Stephen rice mortgage and  charge that the article and settlement make on the marriage of the appellant  Lucy father can not prejudice his right or remainder under his father will the  bill pray to be decree to the possession of the say land and for a account of  the rend and profit thereof since the say John leslie death and to have a  redemption of the say mortgage and that the same may be assign in trust for he  the several defendant put in their answer to this bill and the appellant Lucy  by her answer take by the say George Leslie her guardian be make to say that  she know not whether the limitation in the will of her grandfather James  Leslie create a estate in tail male in John Leslie her father or not or  whether in default of such issue the remainder in tail male come to the  respondent the same be matter of law but that she have hear and believe that  the say John Leslie have suffer a recovery of all or most of the land in the  county of kerry the defendant William Crosbie the trustee by his answer say  that if the respondent be entitle to a remainder under the will of the say  James Leslie the grandfather yet as the say James Leslie at the time of make  his will and of his death have only a equity of redemption in the say land if  no recovery have be suffer of any part of they that remainder under the will  be bar in equity by the settlement and mortgage and that if any part of the  land comprise in the original grant be omit in the recovery he believe the  same be only sub denomination of the land in such recovery and be comprise  under the denomination brown in the recovery The defendant Blenerhasset and  his brown er p wife by their answer likewise insist on the benefit of the  settlement and that it ought to be consider as a bar to the remainder over on  the saint of June the cause be hear when the court without so much as declare  what estate the say John Leslie take under the say will whether in tail  general or in tail male only refer it to the chief remembrancer to audit and  state a account between the plaintiff and defendant of what be due on the foot  of the mortgage make by the say James Leslie of the estate in the county of  cork in which account the appellant Lucy be to be charge with and account to  the respondent dr Leslie for the profit of the say estate since the death of  her father and therein be to have credit for the interest pay on the say  mortgage and all the party be to have all just allowance and if by the report  it shall appear that any thing remain due on the foot of the say mortgage on  payment of what shall thereby appear due the respondent be decree to a  redemption of the mortgage and it be further order that a account shall be  take of the value of the whole estate in the county of kerry and who receive  the profit of the land not comprise in the recovery suffer by the say John  Leslie since his death and that on the respondent pay to the guardian of the  appellant Lucy or to such other person or person who be or be entitle to  receive the same such a proportion of the mortgage money original due to sir  Stephen rice as the land not comprise in the recovery ought to bear regard be  have to the value of the other land original liable to the say mortgage and of  which the say John Leslie suffer a recovery if the say mortgage still subsist  or that any thing be due for principal or interest on the foot thereof the  respondent be decree to the land not comprise in the say recovery videlicet  the town and land of Carhunecunnelagh otherwise Carhunegallen Lyssynorth  Cahirgill Lyssysouth Carhunakilly Mealcaneaghtra otherwise Mealcueightra  Ballynasagart Gortingall Carhugariffe Mealcanoughtra and Glonculleare with  their right member and appurtenance situate in the barony of Jraghty Connor  and county of kerry and likewise to the rend issue and profit of the say last  mention land not comprise in the say recovery from the time of the death of  the say John Leslie the appellant Lucy father and in order to ascertain the  amount thereof it be refer to the remembrancer to audit and state a account of  the same and he be also to examine and report who have be in the possession of  the say estate since the death of the say John Leslie and if any matter shall  appear difficult he be to report the same special on return of who report such  further order shall be make as shall be just on the d of June the remembrancer  make his report whereby he certify that there be due for principal and  interest brown on the mortgage of the land in the county of cork pound and  pound that the appellant Lucy have receive the issue and profit of the say  estate in the county of cork at the rate of pound a year for six year and a  half from the that of march inclusive to the that of march inclusive amount  together to pound S d out of which the respondent admit there be pay on  account of the interest of the above mortgage pound together with pound d d a  year for quit rend Payable out of the say land for six year and a half amount  in the whole to pound S d so that there be due from the appellant Lucy to the  respondent on account of the issue and profit of the say estate in the county  of cork pound S d that the value of the whole estate in the county of kerry be  from the death of the say John Leslie the appellant Lucy father annual worth  pound S d which be six year and a half amount to pound S d and that the  appellant Lucy by her guardian receive the issue and profit of the town and  land follow videlicet Mealcanaughtra Glanculleare Carhunakilly Lyssysouth and  Cahirgill at pound a year Carhunecunnelagh at pound a year Mealconeightra at  pound a year Ballynasagart Gortingall and Carhugariffe at pound a year and a  part of Cahirgill at pound a year amount in the whole to the annual sum of  pound be the land not comprise in the recovery since the death of the say John  Leslie which be six year and a half amount together to pound s That the whole  kerry estate be Chargeable with a yearly quit rend of pound which have be  discharge by the appellant Lucy from the death of her father of which the land  not comprise in the recovery ought to bear a share or proportion of pound S a  year which from the death of the say John Leslie be six year and a half amount  to S d and which be deduct from the say pound S leave pound S d That the  original brown er p mortgage make of the kerry estate by Lord Clare to sir  Stephen rice come by several mesne assignment to Deborah Fitzmaurice widow and  that she on the that of November in consideration of pound which be all that  be then due on the say mortgage assign the same to the defendant William  Crosbie but he do not find that the say defendant ever get into possession of  any part of the mortgage premise the same have continue in the say John Leslie  and since his death in the appellant Lucy who have constant receive the issue  and profit of all the say mortgage premise to that time That the land not  comprise in the recovery suffer by the say John Leslie and decree to the  plaintiff be part of the say manor of Tarbert be worth yearly pound and that  the land of which the recovery be suffer be worth yearly pound S d That the  proportion or share which the say land comprise in the recovery ought to bear  of the say pound amount to pound S and that the proportion or share which the  land not comprise in the recovery ought to bear of the say pound amount to  pound S d which sum with the interest thereof since the death brown of the say  John Leslie at pound per cent amount to pound S d to the that of June which be  deduct out of the say pound S d receive by the appellant Lucy out of the land  not comprise in the recovery there remain due to the plaintiff for the profit  of the land not comprise in the recovery over and above the proportion of the  mortgage money and interest pound S d on the that of July the cause be hear on  this report and the equity reserve when the appellant Lucy guardian make  default in appear and thereupon the court be please to order that the  respondent shall recover from the appellant Lucy the pound S d and the pound S  d so report due with interest from the time of confirm the report as also the  cost of the suit and that a injunction shall forthwith issue direct to the  sheriff of the county of kerry and cork require they to put the respondent  into the possession of the land of Carhunecunnelagh otherwise Carhunegallen  Lyssynorth Cahirgil Lyssysouth Carhunakilly Mealcaneightra otherwise  Mealcunneightra Ballynasagart Gortingall Carhugariffe Mealconoughtra and  Glanculleare with all their right member and appurtenance and into the  possession of all the land with their right member and appurtenance situate in  the say county of cork decree to the respondent as aforesaid and from time to  time to quiet and establish he therein as occasion shall require and that the  respondent may accord make up and enrol the say decree with cost for  performance whereof the process of the court be from time to time to issue as  in such case usual the appellant Lucy be still a infant of tender year the  respondent doctor Leslie in July in order to secure his new acquire title to  the premise thus decree and allot he exhibit a new bill in the same court of  exchequer against the appellant Lucy and the respondent Blenerhasset and his  wife state the precede decree and that the land by he recover lie intermix  with other land which be the inheritance of the appellant Lucy and pray in  order to prevent future contest a commission to perambulate and ascertain the  bind of the land by he recover and to be quiet in the possession thereof  against the defendant and all other person claim under they the appellant Lucy  with the say George Leslie her guardian by their answer to this second bill  admit the former decree and that the land recover by the respondent doctor  Leslie lie intermix with the appellant Lucy other estate and that they be  inclinable to believe there may be occasion to perambulate the bind for  prevent dispute but as the appellant Lucy be a infant her guardian submit to  the direction of the court the respondent Blenerhasset and his wife have  likewise answer this bill the respondent doctor Leslie reply to both answer  brown and the cause be at issue but no witness be examine on either side on  the d of June this new cause be hear when upon read the former decree the  court order a commission of perambulation to issue in the usual manner empower  commissioner to trace and perambulate the bind of the several denomination of  land in the county of kerry recover by the respondent doctor Leslie and the  commissioner be separate to distinguish and ascertain the bind of each  denomination of the say land and the better to enable they so to do a survey  brown er p be to be take of the land recover by the respondent by a skilful  surveyor to be appoint for that purpose distinguish each denomination and the  bind thereof and in case the party shall not agree in nominate a surveyor his  majesty surveyor general be to appoint a skilful surveyor to set out the say  land and on the return of such commission and survey such further order shall  be make as shall be fit in pursuance of this decree a commission issue and  several witness be examine thereon but before their deposition be publish or  any return of the commission make the appellant Lucy intermarry with the other  appellant Mr Fitzgerald who be great dissatisfy with the say several decree  and other proceed in both cause the present appeal be bring in support of  which it be argue W Murray W Noel that by the devise in James leslie will to  his son John and his heir and fail issue of John to his other son James and  George successive in the same manner they several take estate in tail general  and not in tail male only as to the objection that the word of the latter  clause in the will videlicet and fail my issue male then to the use of my  issue female control the precedent estate tail general and confine they to  estate in tail male it be say that these word fail my issue male etcetera can  not control the precedent estate tail general and confine they to estate in  tail male for that will be first by implication from the former word fail  issue of my son John to turn the precedent devise to he in fee into a estate  tail general and then by the word in the latter clause fail my issue male  raise a contrary implication and restrain the estate in tail general to a  estate in tail male that the testator have devise estate in fee to his unborn  son the word fail my issue male which immediate follow can mean only to  restrain those estate in fee to the unborn son to a estate tail general as he  have before limit to his son John James and George that be if all his son  shall die without issue then the estate shall go over to the testator issue  female that this construction give a proper effect to every part of the will  whereas the construction contend for by the respondent doctor Leslie be  inconsistent with the former clear and express word of the will with regard to  the limitation to the testator son John James and George for if the word fail  my issue male be brown to be construe as the respondent contend the daughter  of the testator will be prefer to the daughter of his son which be contrary to  the course of descent evident against the testator intention throughout his  whole will and will be a force construction to the prejudice of the heir at  law but suppose that John Leslie the appellant Lucy father take under the will  a estate in tail male only yet even in that case it be conceive that the  appellant Lucy be well entitle to all the premise in the county of kerry under  the fine recovery article and marriage settlement as a purchaser for a  valuable consideration for it be evident the intention of all the party to the  article and settlement that all the land and estate of John Leslie in the  county of Kerry  without exception shall be convey to the use of that  settlement and sir Stephen rice mortgage which cover the whole estate be  assign accord to attend the inheritance and protect those several use beside  all the land and premise in the county of kerry have always be know by the  denomination of Tarbert and Tyraclea and appear by the old mortgage deed to be  comprise under those denomination without any other description and the fine  and recovery be express as to those denomination and comprehend a sufficient  number of acre to pass the entire estate but if there be any doubt as to the  description of the premise upon the recovery yet take into consideration the  deed declare the use and the recovery itself the same be sufficient to  comprise the whole and be both to be consider but as one conveyance and as  common recovery be now become the common assurance of man estate and on which  so many title depend they be and ought to be construe favourable that by the  decree of the that of July the appellant Lucy be decree to pay cost to the  respondent doctor Leslie and a perpetual injunction be also award against her  and yet although she be then a infant no day be give her to show cause against  it and the subsequent decree and proceed be find entire upon the decree in the  original cause they must whole depend upon the fate of that decree which it be  therefore hope will be reverse and set aside on the other side it be say d  rider p jodrell to be usual for family to entail their estate upon the male  line in order to preserve they in the name of the family brown er p and that  in the present case there be a further reason and motive for so do because the  estate come by a honorary grant from the crown to the testator father in  consideration of his eminent service which must be a inducement to he to  continue it in the male line as most capable of serve the crown on future  occasion and the necessary mean to preserve it in the name of the family and  the testator intent to give his son successive a estate in tail male may be  also further collect from the general design and tendency of his will which  throughout the whole order and course of succession prefer the male to the  female line and he have accord brown in effect declare that when the male  issue fail then and not till then the issue female shall succeed to the estate  that the several part of this will serve to explain each other and by a  consistent construction of the whole prove the testator intent to entail the  estate successive upon his son and their heir male thus for instance the  limitation to the old son and his heir be explain by the remainder to the  second and other son of the testator which demonstrate that he can not mean  heir general accord to the literal expression but heir of the body of the old  son nor do the testator stop here because his intention be not complete  express and therefore he go on to complete the devise and show what heir of  the body of the old son he mean by add and fail my issue male then to my issue  female and their heir for ever and for want of issue female then to my heir  for ever which word be a complete and final explanation of the devise to his  son and show that the testator do not upon the whole mean to create a estate  in tail general in his son but a special estate in tail male only and it be  his intent to postpone the issue female till there shall happen to be a  failure of his issue male this intent can not be answer without neglect his  grand daughter as well as daughter who be both comprehend under the general  expression of his issue female and it will be inconsistent with his design if  the young son who be confess to take place of his own daughter shall be oblige  to give way to the daughter of his old son if it be the testator meaning that  his son shall successive take a general estate tail and that the daughter of  the old son shall be prefer and take before the testator young son such intent  be sufficient and complete express in the antecedent clause of the will and  therefore instead of add the testator ought to have omit the follow clause and  fail my issue male then to the use of my issue female etcetera because those  word can have no proper meaning or effect if apply to a general estate tail in  the son but must in that case be reject as useless and inoperative on the  other hand as it be the true intent of the testator that none of his female  descendant or issue shall take until there shall be a failure of all his issue  male it be absolute necessary for he to add these explanatory word to qualify  and correct the antecedent limitation which import a general estate tail and  thereby to reduce that estate in tail general upon his son to a estate in tail  male only and the several provision afterward make for his young child and the  other direction give by his will touch his estate seem to favour and coincide  with this construction that suppose the son to take a estate in tail male only  under their father will the respondent will then be entitle to the cork estate  and to the several denomination of the kerry estate adjudge to he by the  decree for as to the land in cork there be no recovery suffer of any part of  they and as to the denomination of the kerry estate in question between the  brown party the pretence for include they in the recovery suffer by the  appellant father be that they be sub denomination only and part of or belong  respective to the several grand denomination express and comprise in the  recovery and consequent pass thereby whereas it appear by evidence in the  cause that they be neither part of or include within or belong to any of the  denomination comprise in the recovery but be distinct separate and grand  denomination upon which several and distinct rend be reserve to the crown and  be omit in the recovery the entail thereof be not bar nor the right of the  respondent in any wise thereby affect after hear the agent for the party on  this appeal it be by their consent order and adjudge that the same shall be  dismiss and the several decree order and proceed therein complain of affirm  jour vol p brown er p