Bridgman oh petty v goddard adjudge pro to ward off per belief Bridgman hide  Terrell brown argue all   April Intr r devise of realty and personalty to the  wife of the testator for so many year as she shall live sole remainder if she  shall marry or die to the next heir male of the body of his first son and to  the heir male of his body remainder in default of such issue to the second son  if then live and if dead remainder as before and so to the three son and so to  Thomas four son of the testator if he be then live and if he be dead then to  remain to the next heir male of the body of Thomas and to the heir male of his  body beget and to be beget for ever Thomas take a estate tail by this devise  and so much the rather as such construction be require by other clause in the  will express the general intention of the testator see Fearne on contingent  remainder p c c that edit and see Jesson v wright Bligh donc d wright v Jesson  maul and Selwyn Preston on estate c and see appendix c a hark ms No fol this  term easter car but the roll rot seem to be incorrect b the case of petty and  Goddard be solemnly argue in the court and justice brown argue for the  plaintiff Terrell near sickness be absent but declare his opinion to agree  with hide and myself who argue for the defendant and judgement give accord and  after Mr smith father of the plaintiff lessor move for moderation of cost and  say he will prosecute no writ of error be as he say satisfy the law be against  he see the case in my argument at large Bridgman C J Harg ms No fol argument  at large Robert petty have bring a action of trespass and ejectment Bridgman  oh er p against Edward Goddard of the moiety of twelve mes Bridgman oh suages  twelve garden two hundred acre of land sixty acre of meadow two hundred acre  of pasture and one hundred acre of wood with the appurtenance in Ogbourne  Measey Ogbourne saint Andrews Ogbourne saint George and Ramsbury upon the  demise of John smith October from Michaelmas then last pass for five year upon  not guilty plead a special verdict be find that William Goddard the elder day  ante c be seize in his demesne as of fee of the entire tenement in the  declaration mention and hold the same in socage and have issue William John  Vincent and Thomas Goddard and be so seize that September Elizabeth make his  last will and testament in write inter alian in haec word I give will and  bequeathe to Elizabeth my wife all the profit advantage use commodity increase  and benefit yearly and from time to time arise increase grow and come by and  out of my dwellinghouse and of and by all my land meadow c and hereditament in  Ogbourne mead and ray mead in the manor of Barton and out of and by all my  household stuff implement of household good stock store chattel and cattle  whatsoever at the time of my decease be in or upon the say house and all other  the premise together with the benefit use profit and commodity of the land  call black wood in the parish of Ramsbury and for her better maintenance and  train of her child I give unto her all the tithe in the manor and town and  field of Ogbourne Measey to my rectory of Ogbourne saint Andrews and Ogbourne  saint George belong habendum the say use possession profit advantage c of my  say mansion house land tenement hereditament tithe ablations meadow lease  pasture and all other the premise before express unto her from my decease for  and during so many year as she shall live sole and if she marry or die upon  the first of they which so shall happen then the say good chattel and all the  premise and every part thereof with all and singular their appurtenance shall  remain come and be unto the next heir male of the body of William my son and  to the heir male of his body beget and to be beget and for default of such  issue male then the say good chattel c and premise to remain c to my son John  if he be then Bridgman oh live and if he be dead then the say good chattel c  verbatim ut above and so to Vincent and so to Thomas if he be then live and if  he be dead then the say good c to remain to the next heir male of the body of  Thomas and to the heir male of his body beget and to be beget for ever proviso  and my express mind will and intent be that if my wife within a month after  request by any of the overseer of my will enter not into a bind of such  penalty as the overseer shall like contain the matter and effect in substance  hereafter express videlicet with condition to pay and deliver all such  chattels leases household stuff chattel and implement of household as by this  will she may have and use not spoil c otherwise than by use thereof in good  order but of as good value or nigh it as they shall be praise at after my  death or if any be wear consume or spoil if she in satisfaction thereof pay  other the like parcel of good of the like nature sort and value unto William  my son and executor or unto the old and next heir and issue male of his body  lawful beget and for default of such issue or heir male of his body to the  next in blood of my son and son son which shall happen to be living and shall  be my next heir male inheritable of my land so as my say good may remain unto  my heir male with my land accord as though the same be land and entail unto my  heir male of my body at or before the day of her marriage again so much of my  lease as shall in the mean time run out between the day of my death and the  time appoint to deliver the good and premise before mention to be deliver or  pay to my son William and unto any other person unto who the same shall  appertain accord to the limitation aforesaid and the value thereof be  foreprized she to stand free and not Chargeable to restitution or if she  remain unmarried if her executor pay or deliver to my son William he be then  alive or else to the next heir or issue male of my son William lawful to be  beget and for lack of such heir male or issue of his body to the right and  next heir male of I the say testator all the say chattel lease household stuff  good and implement of household stuff except as before except within forty day  after her death or if any of the say good shall be consume Bridgman oh alter  or change if she her executor c pay to my say son and executor if he shall be  then live or to such other person as the same good household stuff and other  the premise be limit and appoint unto and shall appertain accord to the  limitation aforesaid other like Bridgman oh er p parcel of good of the like  nature in stead and satisfaction of the say good so consume c then the say  obligation to be void and I further will that the overseer from my decease  until my son William accomplish the age of twentyfour year if he shall so long  live and after his decease until such time as the next of my blood to who I  have limit and appoint such portion and legacy bequeathe to my son William if  he shall die before twentyfour year to some degree to be away in think over et  will all and singular the revenue profit and commodity of my land hereditament  c and of all chattel good c bequeathe to my say son William for the use of the  say William my son and after his decease to the use of the next of my blood to  who I have limit and appoint the same and they the say overseer to use the say  yearly profit of my say son his live and good to the best use benefit and  profit c of my say son William and of all other of my blood to who his portion  shall may and hereafter do come and appertain they find the death of the  testator and of William the son in the life of Elizabeth without issue and her  death unmarried and the entry of John and his have issue Elizabeth and Lucy  his daughter and heir and his will that April in haec word whereby he  bequeathe his daughter each l to be pay at twentyone or marriage and other  legacy all my other good land and lease I give unto my brother Vincent Goddard  who I make sole executor desire he to have a care to see this will perform and  die in Elizabeth be of the age of twentyone that Vincent enter and in February  die without issue that Thomas enter and be seize pro ut and set forth a  recovery hill against Thomas then tenant of the freehold to the use of Thomas  and his heir they find that in September Elizabeth marry p smith and have  issue John smith the lessor and die that October and after find the will of  Bridgman oh Thomas Goddard November by which the now defendant Edward Goddard  entitle himself and the death of Thomas Goddard in and the entry of Edward  Goddard the defendant and the entry of John smith as heir to Elizabeth into  the moiety in question and lease to the plaintiff note a infant and not by  deed nor rend reserve and the entry and ejectment of he by Goddard the  defendant et si above totan means the defendant be guilty inside ignorant c  before I come to the point of the case I must premise a few thing case of will  have more of trouble and uncertainty than other case first they be common make  when man be in limit and then reason be disturb and the business precipitate  or do by ignorant man who know not the law or if by lawyer yet who have not  time to know the condition and nature of the estate devise second the testator  will be the law which must guide the judge his intent be obscure and uncertain  it be difficult to find it out and as man have several fancies so will their  conclusion be different in other case we have responsa discretion praxin  skilled ancient and modern exposition and authority here we walk untrod step  No will receive strength or authority from a resolution or judgement in  another will for every little circumstance differ it and the will of one be no  more to be compare to another will than the face of that man to the other man  face some resemblance but no identity and it be rare to have so much as a  proportion or analogy in reason of one case to another yet some general rule  there be which direct we in the exposition of deed and write but much more in  will as first that the intent of the party quantum become to be able be pursue  in the construction of word second that there may seem to be a contrariety or  difference in one part of it from the other or if in some part of it be more  curt or obscure in another more large so that construction as much as may be  be to be make that all may stand if it be agreeable to law and not part take  in and part reject Bridgman oh three in write especial in will non tam  attendend be quality a word how a thing signification all these rule will fall  in our case and I shall keep within they but I shall not raise my discourse  upon these general but upon the particular word of their will I conceive first  the intent of the devisor be that his wife shall have the land for her life if  she continue unmarried for though it be a devise to her for so many year as  she shall live sole and after her decease to another I make no difference  Bridgman oh er p between that and a devise to her for life if it be a devise  for so many year as she shall live it must be void as a devise of a chattel  for it be against the rule of law that a lease for year shall be total  uncertain c c b a parson make a lease for so many year as he shall be parson  it be void see   the bishop of bath case and h dyer but in a will it shall be  good but not as a chattel lease but as a freehold she shall have it so long as  she continue a widow as a freehold and so be Com Walden and Elkingtons case a  devise to one from year to year during his life be agree to be a devise for  life and in one case the latter word if she marry or die then the premise to  remain to her son be a sufficient devise to her for life by implication if  there be no more in the case this have be agree that it be a good devise to  her for life and so I take it for grant not be much to the end of our case  unless we shall admit a contingency for then it will be material a contingent  estate though in a will not be to be raise where there be no freehold to  support it next I conceive that the general intent of the testator in his will  be that upon the death or marriage of his wife William his old son shall leave  it to he and the heir male of his body remainder to John and the heir male of  his body remainder to Vincent and the heir male of his body and that the will  must be expound accord in this point my brother brown differ in opinion with I  for he hold the devise be to the wife for life remainder to William for life  remainder to the next heir male of the body of William as a single person and  as if it be to a first son and to the heir male of his body with like  remainder to John for life omit the other son of William and so to his next  heir male of his body as a single person in tail male and so over to all the  rest and when I speak of a intent I shall not not seem to be omit in the  manuscript c keep myself to a intent mental foreign or conjectural as my Lord  Hobart distinguish for that be indeed Bridgman oh to make a will but not in  write which will not pass land but to a intent legal draw out ex soft fleshy  body parts textus out of the write will itself and the necessary consequence  of the absurdity and unreasonableness of any other exposition of the word  there be two clause in the will whereupon the whole question depend first the  devise clause whereby he devise to big wife for her life if she so long live  sole all the profit advantage use commodity increase and benefit yearly and  from time to time come of his house and land and out of all his household  stuff implement of household good stock and chattel whatsoever at the time of  his death be upon the say house and other the premise and if she marry or die  then the say good chattel and other the premise with all and singular the  appurtenance shall remain come and be unto William his son if he be then live  and if he be dead then the say good chattel and all other the premise to  remain come and be unto the next heir male of the body of William and to the  heir male of his body beget and to be beget and for default of such issue male  then the say good chattel and all other the premise to remain come and be unto  John his second son if he be then live and if he be dead then the say good  chattel and all other the premise to remain come and be unto the next heir  male of the body of John and to the heir male of his body beget and to be  beget and for default of such issue male then c to Vincent and so to Thomas if  he be live and if he be dead then the say good chattel and all other the  premise to remain come and be unto the next heir male of the body of Thomas  and to the heir male of his body beget and to be beget for ever the second  clause be a provisional or conditional clause whereby the testator direct a  bind to be give by his wife and also direct the effect of e condition of it to  be that the say good and chattel in case of his wife marriage or death either  in specie or in value shall be answer to those who be to have the land I need  not strengthen myself so far as to ground my opinion upon this point that a  estate tail be create to the son by the devise clause alone if there be no  more in the will though I shall have occasion to say something to that point  anon but shall enforce my conclusion from both clause together both the devise  and provisional or conditional clause that there be a estate tail to William  and the heir male of his body with like remainder to John c for I conceive  this last clause Bridgman oh er p may by the rule of reason and law Bridgman  oh expound the former if there be alley obscurity or ambiguity in it for first  it most manifest appear even by the devise clause that he intend his good and  household stuff shall go with his land and therefore in that clause be devise  the good as well as the land and that to all his son in remainder one after  another and not only so but in the devise to all his son he take more  particular care in the devise of the good and chattel than of the land he  devise the good and chattel and all other the premisesfirst and particular the  good and chattelsthe rest come in after and in general comprehend under the  word all other the premise and in the conditional clause also the good and  chattel be couple together the word be so that my good may remain unto my heir  male with my land and accord as though the same be land and entail unto my  heir male of my body second if the conditional clause be mere foreign to the  other yet be in the same will if any thing appear in it though a late and by  the buy which give light to the meaning of the former it shall be make use of  and the law play the herald and marshal the word as they way best agree with  the intent of the devisor let they be place in never so much confusion and  disorder but in our case the provisional or conditional clause direct how the  good shall go with the land which by the devise clause be devise together with  the land have a kind of dependence upon the other clause and be most proper to  explain it in Sondays case   which I shall cite hereafter more at large the  devise be to Samuel and if he have no issue male then Thomas to have it if  Thomas marry have a male issue then his soil to have it after his decease if  be have no male issue then Richard to have it it be limit first to Thomas  without express what estate second it be limit to his soil which seem to carry  it to his soil as a purchaser as strong as in our case the word next heir male  of his body yet because there be a collateral clause of perpetuity if alley of  his son or their heir male issue of their body go about to alien their estate  shall be void these word though void as to that which be intend of create  perpetuity yet be agree to expound the other what he mean by son before  videlicet not one particular but the heir male of his body and not to exclude  any young son or other issue male though he name the word son and not heir  male in the body of the devise it be true that there indeed the clause of  perpetuity by which the devise clause be expound concern the land devise  immediate here it immediate concern the good but that make no difference for  before Bridgman oh in one entire clause they be devise with the land and by  the intent of both clause be to go with the land and so collateral and  explanatory it concern the good qy land d second this be admit that the intent  of both clause of the will be that his good and land shall go together when by  the first part of the will he devise the land and good to Elizabeth for life  and after her death the same to his son William if he be then live and if he  be dead then the good chattel and other the premise to remain come and be unto  the next heir male of the body of William and to the heir male of his body  beget and to be beget with like limitation to John Vincent and Thomas these  word in the devise clause prima fancy may seem to admit some ambiguity first  when he limit it to William without limit any estate but leave it to the  construction of the law what estate he intend to William and so to his other  brother second it may be a doubt when he limit it to William if he be then  live and if he be dead to remain come and be to the next heir male of the body  of William and to the heir male of his body how the word next heir male shall  be take whether collective for all his heir male et born to be born el who to  be born ab strike against or only that single individual heir male which shall  be after the death of William or the other brother which of these sense the  devisor intend there be no doubt but the word heir may and do frequent bear  the former sense as well as the latter Fearne c r in the register Judicial fol  in a deed which be strong land give to a man et heir male de corpore his it be  a entail ass pl a gift to I S and his wife et uni heir de substantial object  the dawn bring into existence et uni hceredi this so much this be also a  entail if the word heir be not a word of limitation but a word of purchase it  be mere void for it be not limit by way of remainder as a grant to I S et  birthright son if he have no son at the time it be void and so to a man et  hceredi Bridgman oh er p if heir be take a word of purchase not limitation it  be void for then there be none such in be non be haeres to live c c a b agree  it be a entail and word of limitation Com Colthurst and Benshner be anon  Bridgman oh there hob James Cr molineux case my heir shall have the order of  my land so long as be perform my will and if my son and heir perform not my  will c so it extend to the heir of the heir Cr Bacon and holt case and in  Coundens case in a will I make I S my heir that word include all heir and in  Chadocks case in James Cr the survivor shall be heir to the other if he die  without issue and so a devise to I S and his heir or to I S and the heir male  of his body in the singular number be a estate of inheritance then see how the  testator expound himself in both these particular that be to say what estate  he intend to William and what he intend by the word heir in the other  conditional clause concern the good which be to come in lieu of those former  devise if those be embezzle or consume he tie not himself up to the former  phrase nor to the like limitation of estate to the next heir male and the heir  male of his body but vary it total first he appoint security to be give by his  wife in case of marriage again that satisfaction shall be make to William or  unto the old and next heir and issue male of his body it be copulative next  heir and next issue the devise clause be next heir male of his body his  grandson may be next heir male and yet his son be next issue male then second  for default of such the word be to the next in blood of my son and son son who  shall be live and shall be my next heir male inheritable of my land so as my  say good may remain unto my heir male with my land accord as though the same  be land entail unto the heir male of my body he still use the phrase first  instead of next heir male which be the word of the devise clause he have son  son and in the plural and he describe those son and son son to be his next  heir male inheritable of his land he must be his the testator next heir male  as well as inheritable which by the other literal construction of the devise  in the former part of the will may fall out otherwise as well to good as land  for if William or John have two son if the old son take and die without issue  the second son shall not have they but must go to those who be not next heir  male or the other brother by that construction which be make on the other side  upon the devise clause second he manifest his intent that the good and the  land shall go to his heir male and that his good though they can legal be  entail yet shall go as his land and be as though they be entail and he show  how entail and for what estate videlicet unto the heir male Bridgman oh of  hisown body and it be observable be vary the very phrase of heir male whereas  it be insist upon that the word be heir male and must be understand a singular  person be show here he mean by it the same thing as heir male for he declare  his good shall go to the next of blood of his son he rest not there but and to  his son son which be more person than one be call his heir male one by one  a consul and immediate after so as my say good may remain unto my heir male  with my land which manifest show he mean the same thing by heir male as heir  male three there be another clause if the wife die unmarried the executor to  deliver the good to William he be alive or else to the next heir or issue male  of William lawful beget or for lack of such issue or heir male of his body to  the eight and next heir male of I the testator these phrase the next heir or  issue male of his body lack of issue or heir male of his body the right and  next heir male of the testator and heir male in the plural all extend in the  testator meaning to the land as well as the good though it be in the  provisional or conditional clause and that therefore the former clause whereby  he devise to the next heir male of the body of William and the heir male of  his body be not to be take accord to the letter but as it be after expound in  the conditional clause fourthly there be other clause wherein he vary the  phrase touch the good if William be dead as to the next of my blood to who I  have limit the legacy leave to William and appoint they to manage the good and  estate for the benefit of William and of all other of his blood to who his  portion may come and appertain from all which clause this follow that he lie  no particular weight upon the word heir male which be mention in the devise  that we shall be tie to the strict literal and legal construction to extend it  only to a single person and Bridgman oh er p second that his intent in this  clause be that his good and land shall go to the heir male of his body upon  which premise I infer this syllogistical conclusion it appear by the will that  his intent express in it be that his good and land shall go to the same person  but his intent be that his good shall go to the heir male of his body ergo his  intent be that the land shall go to the heir male of his body or thus it  appear by the will that his intent be that his good and land shall go to the  same person but his intent be not that his good shall go only to the first  heir male of William or John and not to the other son of William Bridgman oh  or John and therefore his intent be not that his land shall go only to the  first heir male of the body of William or John and not to the other son of  William or John I know this be liable to a objection first that by this  construction of the devise clause by the conditional it will follow that the  devise must be to the heir male of the body of the testator and not to the  several son in tail in remainder to which I answer first if it be so it will  be all alike to the party to this suit for then Thomas have a estate tail for  I take it for law if a man devise to the heir male of his own body his old son  take a estate tail to which his brother be inheritable but second in a  reasonable construction he devise before to all his son in remainder one after  another and then express his meaning the heir male of his body it must be  intend that both may stand together that he intend the land to each of his son  and the heir male of his body in remainder one after the other it be the same  in effect and come to the same person who will be heir male of his own body  and this exposition be genuine and a proper meaning in construction of will  for it be in substance to the heir male of his body where after his death it  come to those who be heir male of his body and to no other person another  reason to enforce this exposition that he intend a estate tail to every of his  son and the heir male of their body be take ab out of tune from the unreason  ableness andabsurd consequence arise from the contrary exposition that it be a  devise to William for life remainder to his heir male as a purchaser take it  first literal as a conveyance at the commonlaw of the land to Elizabeth  durante widowhood and that after her death or marrirge it shall remain to  William if he be live and if he be dead then to the next heir male of the body  of William and the heir male of his body and for default of such issue male  then to remain to John if he be then live and if he be dead then to the next  heir male of the body of John c I hold it have be a contingent remainder to  the heir male of the body of William and to John for it be contingent whether  William will outlive his mother and if he do outlive her the heir male of  William take not by the letter of the conveyance and also it be contingent  whether John will outlive both his mother and brother William and if he do  outlive then his heir male take not and in like manner it be contingent to the  other brother the estate ought to commence at such time as the deed or will  Bridgman oh appoint it and at no other time and if the commencement be upon a  contingent or condition precedent whichever happen the estate never arise and  yet I do conceive in our principal case be a will that williams estate be not  contingent upon a rule law expulsion out the dawn who tacit sew up nothing  service William be heir at law to the devisor if the word if William be then  live have be out of the will the law will have supply they William can not  have the land in possession unless be outlive his mother and have they he will  if be outlive his mother though these word have be omit for he be heir at law  Cr web and herring case which be cite a devise to the son after the death of  the mother and if his three daughter outlive the son and mother they to have  it for their life and then I S and I r to have it here be no contingent  limitation but only show when it shall commence but then I take it if you will  have the heir male of the body of William to take in remainder and as a  purchaser there be a perfect contingent or condition precedent to his estate  for it be limit to the heir male of the body of William if William be dead at  the death or marriage of his mother that be in such case and not otherwise and  it be not limit to the heir male of William if William survive her and in like  manner the devise be to John for default of such issue male of William then to  remain to John if he be then live if he be dead then to remain to the next  heir Bridgman oh er p male of the body of John and John survive his mother and  brother William the heir male of big body can not take as if I devise land to  my wife for life remainder to b if be outlive her for life remainder if b do  not outlive her to c b s estate be certain not c s estate if b outlive a c  never take and that be in effect Colthurst and Benshners case Com and be agree  to be so   in Borastons case and in our principal case there be no reason to  make a construction against the word unless the word heir male be take for  word of limitation and then indeed couple all together the devise shall be  take to Elizabeth for life remainder to William and to the heir male of big  body and to the heir male of the body of that heir male but if you will  construe it as a devise to William for life remainder to the heir male of his  body as word of purchase first you put in the word for life which be not  express in the will second you put out the word if William be dead then to the  heir male and William be heir and the limitation after not be to the heir male  absolute but in case William Bridgman oh be dead before Elizabeth then to the  heir male if it have be devise to William and the next heir male of big body  and the heir male of big body be clear a estate tail original note in the  margin of though manuscript f there be no cause to supply and add those word  for life or to take away the force of the other word and if he be dead that be  dead in the life of Elizabeth then to the heir male and so to make it to  William for life remainder to the heir male whether William die before or  after Elizabeth I say there be no ground to make such construction for it be  not warrant by the will itself nor second by rational inference which will be  allow to avoid absurdity in the will which as I shall show present will follow  that construction but if the construction be make of the word heir male as  word of limitation videlicet to William and the heir male of his body then the  whole devise hang together without a sub to come to know or contingency for  then there be a express estate it need not a supply of word to express the  estate intend second there will be no contingency in the case either of person  or estate William will have a estate tail the word heir and heir be in case of  limitation as I have show the same I have labour the more in this to show that  if you make the word heir male in the will to be word of purchase and the heir  male to take as a purchaser there will be a contingency both of the person and  of the estate and all other the subsequent remainder which be so limit will be  contingent and depend upon that for what I have say of William be applicable  to John who first outlive the mother and so upon that construction outlive the  contingency and second it follow by law that whichsoever of the contingent  happen it put a stop to all other the remainder and make they all void for the  limitation be to William if he be live at the death or marriage of his mother  and if he be then dead then to the next heir male of the body of William and  the heir male of big body and for default of such issue then to remain to John  if he be then live thenwhen it must relate to the time when Elizabeth die if  William have outlive his mother then accord to the letter all the other  remainder have be void and so it be John outlive his mother and brother  William all the subsequent remainder to big next heir and to big brother  Vincent and Thomas by the commonlaw in construction of a deed pen as this will  be and by the literal exposition of the will be void for no re Bridgman oh  mainders be limit to John if William or big next heir male be live when  Elizabeth die and the same reason extend to John the limitation be to John if  he be then live and if he be dead at Elizabeth death then and not otherwise to  his next heir male and the heir male of his body and then and not otherwise  for default of such issue it be limit to Vincent and so on to Thomas and so  the contingent or condition precedent to the estate of John videlicet big  survive big mother and William his brother be perform in John all the other  estate depend upon the not performance thereof can rise and the consequence  thereof will be in such a deed and must be in this will upon such a literal  construction that if any of the son have outlive the mother he shall have have  it and all the remainder will have be void which be most manifest contrary to  the intent of the devisor who as appear upon the whole context both of the  devise Bridgman oh er p and conditional clause intend that his several son for  default of issue male of the other shall have it that this be true that if  there be a contingency in the devise it be perform in John all the remainder  be void the rector of Chedingtons case be to our purpose   a lease be make by  Robert to Elizabeth Elderker for eighty year if she so long live and if she  die within the say term of eighty year then he lease the premise for so many  year as shall remain after the death of Elizabeth to Ralph for the residue of  e say term with like grant if Ralph die within the term to William for the  residue of the say term of eighty year if be so long live and if he die within  the term then be grant the premise for so many year of the say eighty year as  then shall remain unexpired to Thomas his executor and assign it be adjudge  that the estate to Thomas be upon two contingency first Ralph can not take  unless Elizabeth die within the term and William can not take unless Ralph die  within the term that be before Elizabeth for the term determine by her death  and Thomas can not take unless William die in the life of Elizabeth videlicet  infra boundary prediction and both Ralph and William survive her and therefore  Thomas who be not to take if Ralph or William survive can not take at all m  James Cr b r pell and brown William brown have William Thomas and Richard  devise to Thomas his second son pay to Richard at the age of twentyone year  and if Thomas die without issue live William that then William shall have the  land to he and Bridgman oh his heir and assign for ever it be adjudge Thomas  have a fee and that the clause if he die without issue be not absolute and  indefinite whensoever he die without issue but it be with a contingency if he  die without issue live William for he may survive William or have issue alive  at the time of his death in which case William shall never have it but be only  to have it if Thomas die without issue live William and the book m and  Elizabeth be cite to warrant it and this be also agree in Chadocks case Cr and  the true difference be put in Borastons case   when the word when and then  refer to a thing which of necessity ought to happen there they make no  contingency although they be adverb of time as there it be when Hugh Boraston  shall or may accomplish his age of twentyone year in our case it may happen  that William may die before Elizabeth or William may survive Elizabeth both  can happen and so John may die before Elizabeth and William or may survive  they and therefore the estate to the heir male be limit to take effect if  William be dead in the life of Elizabeth and not otherwise be contingent not  only as to the person but as to the estate whether it shall take effect or not  and John depend upon that and be also contingent in estate admit still for I  argue all this upon supposition that the heir may take by way of remainder and  as a purchaser and not by way of limitation and in this there be a great  difference between a contingency as to the person and a contingency as to the  estate if a devise or grant be to one for life remainder to his first second  three c son c remainder to I S that to I S take effect and the contingent  estate in respect of the person may afterward arise and interpose so if land  be limit by a proper deed to William for life by express word remainder to the  first heir male of his body and the heir male of the body of that heir male  remainder to John I make no question but the present estate to William and to  John be execute and the contingent estate when it shall happen shall interpose  peradventure so it may also in case where the contingency of estate be annex  to a particular estate and not to the remainder subsequent but where the  contingency be in the estate and in nature of a condition precedent whatsoever  depend upon that be contingent also in our case the heir male of the body of  William if the word must be take as word of purchase can take if William  survive his mother John can take unless be survive mother and brother and the  estate the word estate be substitute by the editor for the word that f of his  issue depend upon all these encounter Bridgman oh gencies it be not limit by  the will to the heir male of the body of William or to the heir male of the  body of John as a immediate remainder but it be limit to William if he be then  live if he be dead that be then dead to the heir male of Bridgman oh er p his  body and in like manner to John if he be dead that be then dead to the heir  male of his body in napper and sander case adj Henry car c b hut a feoff be  make to the use of Margaret sander for life and after to the use of the feoff  for eightynine year if Nicholas sander and Elizabeth big wife shall so long  live and if Elizabeth survive Nicholas then to the use of Elizabeth for life  and after the decease of Elizabeth then to the use of posthumus in tail with  remainder over it be adjudge that the estate limit to Elizabeth if she survive  her husband be contingent but not the remainder and the reason be because the  contingency or condition precedent be annex only to Elizabeth estate the other  estate to posthumus be to take effect after the death of Nicholas and  Elizabeth and therefore Elizabeth estate upon the contingency happen may  interpose it be limit to posthumus after the death of Elizabeth and not if she  die before Nicholas nor if she survive Nicholas for then the other remainder  have be also contingent and beck case p c b r I car be in effect this a  conveyance be to the use of James beck the grandfather for life and after to  James beck the second son for life remainder to the use of the first son of  James the son which shall have issue male of his body and to big heir for ever  remainder to the use of big first daughter which shall have issue of her body  and her heir for ever and for default of such issue remainder to the right  heir of James beck the son for ever it be adjudge the estate to the first son  of James the son be contingent and that a remainder to the right heir vest in  James the son and though James the son have a son who die before he without  issue yet big fine be no forfeiture to the heir at law but in our case take  the word heir male to be word of purchase it be as a contingent or condition  precedent annex to the remainder the heir male of William or John be not to  take if William or John survive the mother Acton and horde case Elizabeth cite  in Lovies case   a fine be levy to the use of a and the heir male of his body  till be or the heir male of big body have do such a thing and after such a  thing do to the use of another in tail and a die without issue without do the  thing the remainder which be contingent never take effect and the Bridgman oh  case e there cite William lease to John for the life of John render rend to  William for the life of William and after the death of William to John and big  heir this be a contingent till the death of William if William die before John  it be a good remainder but if John die before William it be nought so that in  one case by that expression which be make that the heir male of William and  the heir male of John take as purchaser it follow that they can take but upon  a supposition or contingent precedent that be if William die before Elizabeth  then and not otherwise his heir male take and so if William and John die  before Elizabeth then John heir male take and not otherwise and these  contingency not happen all the subsequent remainder must be void a three  absurdity or unreasonableness which will arise upon that exposition be this by  a grant or deed in law in like word as the devise be here admit William or  John have son the old of these sodden be next heir male must have take to he  and to the heir male of big body and no other and for default of such issue  the second or other son shall not have have it but it shall have go over to  the other brother in remainder which be as it be say of Jacob and Esau Rome  ringtail the child be not yet bear neither have do any good or evil it be  write Jacob have I love but Esau have I hate and so they shall be condemned  ante quod born he that shall make such a grant will be account a unreasonable  man and yet the grant shall be good but will be make common by man in limit  and be weak council the law will help and assist they and not judge if any  other exposition can be make that a man who be in big death bed will wilful  and without cause disinherit a infant who never offend or pick and choose and  take one and leave out another of the same stock and his own heir when there  be neither offence give by the child or big ancestor so that these absurdity  will follow upon literal and legal exposition first if William or John outlive  the mother all the remainder contrary to the express intent of the testator  will be void and William or John have the estate by the will be Bridgman oh er  p it what estate it will be that also will drown in the fee descend to he  second that if William or John shall die and leave son all the first be  exclude and it will leap over to those of more remote kindred three if William  or John die leave his wife with child of a son even that son also must be  disinherit the son not be in be when the contingency happen all which Bridgman  oh absurdity be avoid by the exposition of the word heir male to be the same  with heir male and so to be word of limitation it have be object that all the  son have a estate tail except Thomas by the will by implication of those word  and for default of such issue so that John have not but for default of issue  of William and Vincent for default of issue of John and Thomas for default of  issue of Vincent but in the case of Thomas the devise run thus to Thomas if  lie be then live and if Thomas be dead then to the next heir male of the body  of Thomas and the heir male of his body for ever but no limitation over and  for default of such issue which follow after the other devise and therefore  that Thomas have no estate tail but a estate for life and all the rest be good  entail by the will and Thomas have but for life shall not prejudice the  remainder or reversion in fee descend to the daughter of John to this I answer  that the word for default of such issue can literal extend to the issue of  John or Vincent for the limitation be to the next heir male of the body of  John and to the heir male of his body and for default of such issue to Vincent  such issuewhat issue why issue of the next heir male of the body of John that  be the last antecedent and there be no colour to extend it to the issue of  John some more colour may have be have it be for default of issue general to  remain to Vincent but be for default of such issue the such the ankle must  have a wicker basket such issue as he have last before speak of which be the  issue not of John but of the heir male of the body of John if land be grant to  a for life remainder to his first son and the heir male of his body and for  default of such issue to b it be clear that such issue go not to the issue of  a but to the issue of his first son and therefore if the first son issue fail  it shall go to b and not to the other son of a this be so clear and manifest  as that it needs no further probation as I conceive and therefore there be no  difference between the limitation to Thomas and the limitation to his brother  but the absurdity will still remain upon a lateral construction of the word  which I former mention videlicet that the estate shall leap and skip over from  the old son of John to the brother exclude all other the son of John and so it  must be in the case of Vincent and Thomas and that if John survive the mother  all other the limitation be void and therefore to avoid all these absurdity  and to make a congruity of all the part of the will the one to the other and  to his intent I conceive it ought to be construe that he do devise the land to  Elizabeth Bridgman oh for life remainder to William and the heir male of his  body remainder to John and the heir male of his body and so to the rest of the  brother and therefore three I conceive the very word of the devise itself take  in that latitude which we allow in construction of will without wrest or offer  violence unto they will bear this interpretation Obj the word be remain  descend and come resp so when it be to W remainder to the heir of his body or  heir male of his body e cite by my brother Browne Note in the manuscript g for  first when he devise to Elizabeth for life and after her death to William if  he be then live or if he be dead then to the next heir male of the body of  William and the heir male of his body with remainder over this may be well  construe not to import a contingency for William will have have the land if no  such expression have be he be heir at law and expulsion out the dawn who tacit  sew up nothing service but indeed that reason reach not to John for William  may have leave daughter but second word of then and when in will be often take  expletive as it be say in Borastons case in land there be to be consider et  res et modus to have the land and the several degree as it be term in  Throckmorton and tracy case Plowden command of have it the land be the  substance and possession be one degree reversion or remainder another another  degree of have or enjying it William or John can not have a possession in the  life of Elizabeth but he may have a reversion and when Elizabeth die then the  possession so that the word of devise to William if William be then live may  be construe to extend to the possession that be that have Bridgman oh er p a  reversion he shall enjoy it their in possession if he be live if he be dead  big issue shall enjoy it and agreeable to this construction be the very  principal case of Throckmorton and Tracy where there be a grant of the  reversion habendum the land from the death of I S for thirtyone year Spaldings  case p car I Cr which have be cite was He have three son John Thomas and  William devise to John his old son the land in question to he and the heir of  his body in fee after the death of Alice the devisor wife and if John die live  Alice he do not say if John die without issue live Alice that William shall be  his heir he devise other land to Thomas in tail and if he die without issue  that John shall be big heir and devise other land to William his three son and  the heir of big Bridgman oh body and if all big son shall die without heir of  their body then the land shall go to the child of his brother John die in the  lifetime of Alice his mother leave a son and it be adjudge that he shall have  it and that the word if John die live Alice shall be construe if John die  without a son live Alice the reason be as I conceive the law will not construe  it that the testator intend contingency which be as metaphysical notion to  disinherit a heir that be the true reason the word if all the son die without  issue then to his brother child will not supply it these word indeed may give  a estate tail after failure of the son before the brother but not between John  and big brother so here the word if if William be then live shall not be  understand to make a contingent limitation and to make the devisor a lawyer to  intend the metaphysical learning of contingency but plain that the possession  shall come to William or John if then live if dead to his son or heir male and  the same reason which make we to construe that there shall be no contingency  in the estate though the word sound in contingency if William be then live  after the word live there be a blank in the manuscript and possession be  supply in a recent hand No the whole passage be confuse and the editor have  alter the bracket and add the word warrant I in possession warrant the  construction that the word heir male shall be construe as word of limitation  and not as design a contingency in the person the testator I say know not  these metaphysical notion but plain that the possession after the death or  marriage of Elizabeth shall come to William if he be then live if not to big  next heir male and then the case will be no more than this he devise to  Elizabeth for life remainder to William and the next heir male of the body  this I take to be a estate tail in William for the word heir be a word of  limitation in this place shall be take collective agreeable with the case put  before out of the register and ass and in car c b h Thomas and keney case vin  Abr p title devise d pl king limitation in use all Edward Kelneys et heir male  de son corpse en Le singular number to be as far as un estate tail it may be  object that there it be bare word of limitation but here it sound by way of  remainder but itwas adjudge in a strong case P Bridgman oh B R Bawsey or  Pawsey and Lonsdale MSS hill car S c with I roll ab pl pl pl style Cory ms Rep  common Rep cite ms Rep of l I give my land to my son Richard during his life  and after to the heir of his body for ever adjudge Richard have a estate of  inheritance and yet it be limit to he express for life and so in sharp and  Musgraves case this case be call scarp v Goderd in a manuscript report No hark  ms pl where it be say by Mr umfreville not to have be decide m c b a  copyholder who have surrender to the use of his will devise to Robert for life  and after his decease to the heir of his body for ever upon a condition it be  agree Robert have a estate of inheritance a strong here where it be limit to  John and the rest general without limit it for life agreeable to these case be  Busby Mansells case Danvers pl cite in alford case in these report in the  exchequer a man have a long term devise it to a for life remainder to the heir  of his body with remainder over it be Bridgman oh er p much urge the heir in  case of a chattel take as a purchaser but because they be word of limitation  in their own nature and it vest in no person in be the judge will construe it  as a estate to a and the heir of his body and will not admit it as a  limitation in contingency and yet there be word in remainder and be of a term  the word heir or heir be allow and the word next alter not the case to the  heir male and next heir male be all one for he that be heir male be next heir  male if the word have be first heir male it may have have some influence but  to go no further but next be no more than when the law imply and it it supply  here oh may well also be construe next successive et pro tempore it be object  in these case there be no remainder limit over but here the word go far to the  next heir male of his body and the heir male of his body to this I answer that  in a will these be but word of redundancy and declaratory as in Shellys case a  conveyance to the use of the heir male of the body of Edward Shelly and the  heir male of their body these word be but redundant and make not the heir male  in the first place to be purchaser and yet the word heir male may be word of  purchase as well as heir male in the singular number but the reason in that  case be if the first word be word of purchase then all the issue male of the  body of Edward Shelly but the first he exclude to take by the limitation which  reason hold strong in this case of a will it be true in archer case the record  there be to the right and next heir of Robert and the heir of his body notam  it be not heir male of his body but heir male note in the manuscript p there  be a express devise Bridgman oh to Robert for life and after to the next heir  male of Robert and to the heir male of the body of such next heir male it be  adjudge he have a estate but for life and the next heir male take as purchaser  but their be express for life in the very will there be less cause by  construction to give he a estate tail second it be not to the heir male of  Robert nor heir male of the body of Robert and so differ from the word  subsequent of limitation which will alter the case as I shall show by and buy  but bear it be limit to William and so to John after the death of Elizabeth  general without show what estate and therefore may admit that construction  that William shall have a entail but for that case of archer I will not raise  up again the question from the grave but I must say first that the other point  of contingency that the remainder may be destroy be unanimous resolve go to  the end of the case so that the resolution of this be ex abundant and more  than need and second it appear by the verdict that Robert be son and heir to  the testator and therefore the estate for life limit to he before a son bear  must determine it be incompatible that the feesimple in he and the estate for  life without any estate actual to interpose shall stand together in Lewis bowl  case   upon a feoff or covenant to stand seize to the use of a for life  remainder to his first and other son in tail remainder to the heir of the body  of a there be a estate arise when the contingency happen to set up and feed  the contingent use but there be none such in case of a will so that this point  in that case be pass over to introduce the opinion of the court in the great  point of destroy a contingency by feoff and of a warranty descend to bar it  and in truth the case itself vary in the record of the verdict in some thing  from it as it be recite in the case for the word of the will as they be find  by the verdict be to Robert for life and after his death whole to remain to  the right and next heir of Robert and to the heir of his body and so be the  case itself as it be report Cr in the case it be to the next heir male of  Robert and to the heir male of the body of such next heir male but be it one  or the other it be not the next heir or heir male of the body of Robert but to  the next heir or heir male of Robert and heir male of his body and therefore  have more ground to make he a purchaser because the word whereby he shall take  as a purchaser differ from the limitation after and be not of the same kind  the heir male or heir of Robert ex Bridgman oh tend to the collateral line so  do not the word of limitation and therefore may well be understand to be of a  differ kind but in our case the word Bridgman oh er p heir male of the body of  William or John and the heir male of his body be both of one kind and the  Iatter word vary not in the limitation three the time of the will in archer  case and of this will be to be consider this will be make that September  Elizabeth and archer case be in the same year that case and shelly case come  in print three or four year after and till shelly case it be long debate  whether where a estate be limit to a man for life remainder to the heir male  of his body whether the heir do not take as a purchaser and therefore even in  that case they do not rest in limit it to the heir male of the body of Shelly  but to the heir male of the body of those heir male and that may be the reason  why it be so limit both in this and that will but as it be adjudge in the case  of Shelly to be superfluous so shall it be here if the word heir be take  collective for heir it be no more than a devise after the death of Elizabeth  to William and the heir male of his body and the heir male of the body of such  heir male with like remainder to John and the heir male of his body and so all  part of the will agree p Elizabeth Cr smith and haw the grandfather devise to  the father for life remainder to the son and the heir male of his body  remainder to the right heir of the devisor and the heir male of his body beget  the grandfather the devisor and the father die the son have issue a daughter  it be adjudge she have a feesimple notwithstanding his intent be apparent that  his right heir shall have a estate tail for the fee vest in the father by the  death of the devisor and can by matter subsequent be turn into a estate tail  Sunday case Rep which I have before cite in part prove this exposition he  devise if his son Samuel to who he have before devise it have no issue male  then his son Thomas to have it if Thomas marry have a male issue then his son  to have it and if he have no male issue then Richard to have it there the  estate be to Thomas general and after to his son which be much more particular  than the word next heir male in our case yet ad that which must be avoided  absurdity the law will construe his meaning by the subsequent word that his  issue male shall have it so that no estate go to the son of Thomas by the word  son for that will exclude other son but a estate tail settle in Thomas himself  and so by analogy of reason in our case the heir male and heir Bridgman oh  male of the body of the heir male shall extend to the heir male of the body of  William I do not deny this be not the clear literal interpretation of the word  but it be enough if the word will bear this interpretation the other part of  the will manifest this to be his intention and thereby avoid not only  contradiction but absurdity which will arise upon another interpretation but  whether this interpretation of these devise word shall stand or not yet his  general intent upon the whole will appear that the heir male of the body of  William the devisor shall have it by express and pregnant word in the will  subsequent to this that part of the will shall be take to be in force which be  last in the will and agree with that general intent rather than the other part  for the last word in a will and the first in the deed shall stand in force so  that I conclude that the general intent of the devisor in the will be that the  land shall go to his son and the heir male of their body successive in  remainder and I deduce it first from that which be apparent in both clause of  his will that he intend his good and land shall go together second that it be  manifest his good by the word and intent of the will be to go to the heir male  of his body and consequent his land ought to go so also three from the  absurdity and unreasonable consequence of another construction first that if  any of the son outlive the mother all the remainder will be void contrary to  his express intent second that if William or John shall have two or more son  all shall be disinherit but the old and the estate skip over they to another  brother and in like manner from one brother to another brother nay if William  or John wife be enseint at the time and the child bear after Elizabeth death  it shall not take and last from the devise word themselves which in a  reasonable and fair construction such as we allow in will though not necessary  yet that which must be avoided absurdity be fair and without violence extend  to the sense of devise the land to his son and the heir male of their body in  remainder one after another whereas Bridgman oh er p to introduce that sense  which be put upon the word by my brother of the contrary opinion and which  confess carry with it these unreasonable consequence and absurdity you offer  great violence to the word for whereas the word be to William if he be then  live and if he be dead to the next heir male of his body you put in the word  for life and make it to William for life Bridgman oh and you put out the word  if he be then live and if he be dead which word literal sound in contingency  and make it to William for life remainder to the next heir of his body and the  heir male of his body for authority in point I can cite none I remember what  justice Jones say in Daniel and Ublys latch and the contemporary reporter car  Q case a case upon a will have no brother and therefore authority in point in  such case can be expect but these case which as cousin german by analogy of  reason agree with we as Sunday and Spaldings I have cite as they come in my  way and lie no further weight upon they I conclude that judgement ought to be  give for the defendant who claim under the recovery suffer by Thomas who as I  have argue be tenant in tail