case John dubber on demise thomas trollope gentleman against sir thomas  trollope Bart Trin that and that g in c b follow full v chamier l r Eq  argument of Lord chief justice eyres upon his give judgement in this cause  devise of land to W t for life remainder to his first son for life remainder  to the right heir male of his body remainder to the second c son of W and the  heir male of their body remainder to t t for life and after to his first heir  male of his body and for want of such over hold t t take a estate in male the  correction of the text in this case be from serjeant hill ms Vol p the  judgement be deliver by chief justice Eyre S c vin Abr hill ms Cox ms d f h e  this be a ejectment of the manor of Caswick and other land in the county of  Lincoln upon the demise of Thomas Trollope gentleman upon not guilty plead a  special verdict be find to this effect ambler that sir Thomas Trollope Bart  grandfather of the lessor of the plaintiff and greatgrandfather of the  defendant sir Thomas Trollope be seize in fee of the land in question and have  issue five son videlicet William Thomas Christopher James Matthew and be so  seize that march make his last will in write and thereby devise the manor of  Caswick to his old son William Trollope for life remainder to his first son  for life remainder to the right heir male of his body lawful beget remainder  to his second three four five six seven son of the body of William and the  heir male of their body lawful beget and for want of such issue to his son  Thomas Trollope for life and after to the first heir male of his body lawful  beget for want of such heir male to be and remain with his son Christopher  Trollope and the first son of his body lawful beget and as for my son William  the first second three four five six seven son for want of such issue to be  and remain to his four son James Trollope and the heir male of his body lawful  beget and so to the first second three four five six seven and the heir male  of their body for want of such issue then to remain and be to his five son  Matthew Trollope and the heir male of Ws body lawful beget and so to the first  second three four five six seven son for want of such issue to remain to the  right heir of sir Thomas Trollope for ever that may sir Thomas Trollope die  seize and his old son then sir William Trollope enter and that may sir William  Trollope die seize without issue male leave issue his only daughter Elizabeth  who afterward die without issue the jury further find that Thomas Trollope the  second son of sir Thomas Trollope at the time of make the will be ambler a  infant and unmarried and die in the lifetime of sir William Trollope leave  issue Thomas Trollope father of the defendant sir Thomas Trollope that Thomas  Trollope after the death of sir William Trollope be then sir Thomas Trollope  enter and have issue the defendant his old son and afterward d November die  seize leave the defendant his son and heir that Christopher Trollope and James  Trollope the three and four son of the first sir Thomas Trollope the testator  die in the lifetime of the say sir Thomas of the last sir Thomas without issue  that about that August Matthew Trollope the five son of the testator die leave  issue Thomas Trollope his old son lessor of the plaintiff so that upon this  special verdict it appear that three of the five person mention in the will v  videlicet William Christopher and James the first three and four be all dead  without issue and be quite out of the case ambler er p and the question be  between the heir male of Thomas Trollope second son of sir Thomas Trollope the  testator in which branch of the family the estate have be all along enjoy and  the heir male of Matthew the five son who be now the lessor of the plaintiff  and the title he make be under the remainder limit to Matthew the five son  suppose that it have take effect because three of the remainder be spend by  death without issue and that the other be not subsist because the limitation  to Thomas the second son do not create a estate tail and be no more than a  estate for life to he and afterward to his first heir male for life which  estate be determine by his death and by the death of his first heir male who  be the defendant father and consequent the remainder to Matthew the five son  and the heir of his body must take effect in the plaintiff who be his heir  male ambler so that the question arise upon the limitation to Thomas Trollope  the second son of the testator to who the estate be appoint to remain in these  word to my son Thomas Trollope for the term of his natural life and after to  the first heir male of his body lawful beget and for want of such heir male to  be and remain to Christopher c and we be all of opinion that by virtue of this  limitation Thomas Trollope become seize in tail to he and the heir male of his  body beget and consequent the defendant must be entitle as his heir male of  the body of Thomas Trollope his grandfather and to make this clear and evident  it may be proper to divide the question and to consider every part of it  separate and distinct saint I will first consider it as a devise to a man and  the heir male of his body in the singular number and what effect such a devise  will have dly whether a devise of a express estate for life to the first  devisee previous to the limitation to the heir male will at all vary the case  from a plain devise to he and the heir male without any such previous  limitation for life dly whether the word first be insert before the word heir  male which make it a devise to Thomas Trollope and after to the first heir  male of his body beget will make any alteration in the case thly what effect  the last word and for want of such heir male in the subsequent limitation will  have and how far they will influence the precedent limitation to Thomas in  make it either a estate for life or in tail and from the consideration of  these four point it will clear appear that the devise to Thomas Trollope for  life and after to the first heir male of his body lawful beget and for want of  such heir male to be and remain with another person will give the first  devisee a estate tail I shall consider these point in their order and begin  with that which be first mention videlicet saint what effect a devise to a man  and the heir male of ambler his body will have and whether it will give the  devisee a estate for life or in tail how this matter will have stand if the  limitation have be in a deed be not our affair at present to determine because  we be now upon the construction of a will but since the reason upon the word  heir male in the singular number in the case of a deed have be think proper  and of weight in the case of a will it will be necessary to take notice of the  book which have be cite in the case of a deed see touchst baily v morris Ves  press be Blackburn v stable Ves b now it have be insist upon from the first  section of Littleton and coke comment upon it that the word heir in the plural  be absolute necessary to create a estate of inheritance and Littleton section  say that the word heir only can make a inheritance in all feoff and grant and  coke saint Inst b say that every word of Littleton be worthy of observation as  heir in the plural number for if a man give land to a man and his heir in the  singular number he have but a estate for life for his heir can take a  feesimple by descent because he be but one and therefore in that case his heir  shall take nothing but this seem to be answer even in this book Inst foe where  it be say that though Littleton say heir yet heir in the singular number in a  special case may create a estate tail as appear by ass Inst where coke say  that of all the estate tail most correct and restrain that I find in our book  be the estate tail ass where land be give to a man and to his wife and to one  heir ambler er p of their body lawful beget and to one heir of that heir only  which he agree to be a estate tail which seem to contradict his former opinion  in a strong instance than he have before put see Warwick v Warwick atk touchst  the former instance be of a gift to a man and his heir male in the singular  number and however it may be construe to give the estate a descendible quality  to every heir one after another when there be nothing particular to restrain  it to one heir only yet when it be limit after the decease of the grantee or  donee as in ass to ambler the first and second heir only it be a plain  declaration of the donor that it shall go no further and be such a restriction  as seem to deprive it of the quality which be the true description of a estate  of inheritance videlicet that it be a estate descendible to all generation and  therefore this of ass can never be a estate tail unless a grant to a man and  one heir male or a grant to a man and his heir male in the singular number  will make it so and therefore one will think that the word heir male in the  singular number shall give the estate a descendible quality and make it  inheritable and it do not appear that Littleton ever intend to say otherwise  for he be not consider whether the word heir in the singular number be  equivalent to heir in the plural and be only say that the word for ever alone  as a grant to a man for ever will not create a inheritable estate for it must  be say who shall take and enjoy this estate for ever and to establish this as  a rule of law he say that the word heir only can make a estate of inheritance  in feoff and grant and one can hardly suppose that the case of the word heir  in the singular number be then think of or that he intend to say that it shall  not be take collective and shall mean but one heir only and the reason give by  Lord coke Inst b that the heir shall take nothing because he be but one be by  no mean convince and can never hold when it be consider that there can be but  one heir at one time for heir be to take one after another in a course of  descent and there can be but one heir at once and there be also a considerable  authority Reg jud to this purpose where there be a cognizant fa bring by a  issue male to execute a fine of land grant to his father and hceredi male de  corpore his procreate and there be no resolution of any book or court to the  contrary except in Shelleys case which be only arguendo but however it may  stand upon a feoff or grant yet it can never be imagine that the word heir be  necessary to make a estate of inheritance in the case of a devise coke say  ambler express Inst b that a devise to a man in continuous or in fee or to he  and blood his or seed his will make a estate of inheritance by the intention  of the testator and it be as reasonable to infer that the testator intend to  give a estate tail by the limitation to the father for life and afterward to  his heir male for it be plain he intend to give a descendible estate that  shall go from the ancestor to the heir a estate that may be inherit and  therefore it may reasonable be intend that he design a estate tail a estate  inheritable by the heir male of his body and it be so declare in the case of  clerk v day cro where it be say to be agree by all the justice that a devise  to a man and the heir of his body be a estate tail and shall go to all the  heir of his body for heir be nomen proceeding by inference and one can have  but one heir at one time and this shall go from heir to heir note thus the  word heir or heir male may in a will to give effect to the intention of the  testator be construe as nomen proceeding by inference see Bayley v morris Ves  but in a deed such a construction can obtain see ib this be a opinion they all  agree in though they differ in the principal point which be a devise to a  daughter for a term of her life and if she marry and have any heir of her body  lawful beget then that heir after her decease shall have the land and the heir  of their body lawful beget and if the daughter do die without issue the  remainder over the fact be that the daughter marry but die leave issue who  feoff the lessor and he bring a ejectment against the husband who claim as  tenant by the courtesy and the question be whether the devise to the daughter  give her a estate tail execute or whether she have a estate for life only this  case be report in several book videlicet cro Elizabeth roll Abr roll Abr more  Owen but in different manner in regard to the opinion of the court and  therefore have be cite on both side of the question but be of no authority on  either for it never be resolve and this appear by the record ambler er p which  be enter hill Elizabeth rot b r by the name of clerk v day it be state in cro  Elizabeth accord to the record but no judgement be ever give it in ambler Jon  can v Goddard devise to a man for life and afterward to his next heir male and  for default of such issue remainder over be say and resolve to be of the same  sense with heir male Bulstr Ro Abr whiting v Wilkins if a man devise land to r  his young son for ever and after his death to the heir male of his body for  ever with diverse remainder over by this devise r have a estate tail and not a  estate in fee which be make by the word heir male in the singular number only  another case be in style Ro Abr Bawley v Lowdal the word of the book be if a  seize of a copyhold in fee surrender it to the use of his will and afterward  by his will devise it to b his cousin for his life and after his death to the  heir of his body beget for ever in this case the word heir be limit to the  body of b be nomen proceeding by inference and all one with the word heir and  the word for ever which in a devise make a fee be only put to show his  intention as usual when land be give to one and his heir for ever and  therefore in this case it be a fee execute in b and his heir be in by descent  and not by purchase and this be not like to archer case   where the devise be  to one for life and after to his heir male and to the heir male of such heir  male for there the inheritance be limit to the heir of the body of such heir  male which show that the word for ever be not make use of as a reason to help  out the word heir male in the singular number which be offer as a answer to  these last case there be case indeed where a devise to the father for life and  after to his next heir male and to the heir male of such next heir male have  be hold to be only a estate for life in the father with a remainder in tail to  the next heir male which be certain right but the reason be because the  inheritance in express limit to the heir male such heir male it be not a  devise to a man and his heir male and to the heir male of such heir male note  read it be not a devise to a man and his heir male rest it there but to a man  and his heir male and to the heir male of such heir male which show that the  word heir male be the word which first limit the entail be graft upon the word  heir male note read and make they operate and ambler operate as a demarcation  personce and prevent the operation of they as word of limitation upon the  estate limit to the father which be archer case cro cro Elizabeth and for that  be a devise to Robert archer the father for life and afterward to the next  heir male of Robert and to the heir male of the body of such next heir male in  which case it be hold that Robert have but a estate for life because he have a  express estate for life devise to he and the remainder be limit to the next  heir male in the singular number and to the heir male of such heir male which  show plain that the father be not to take a estate of inheritance for the  devisor have not limit the estate to his heir male but to the heir male of his  next heir male it must be confess that the devise of the express estate for  life the remainder to the next heir male in the singular number be say in the  report of archer case to be the reason why the court adjudge it a estate for  life but in no case since that time have it be consider or undertsood as a  resolution upon that single ground but the subsequent limitation to the heir  male of such heir male have be look upon as the true foundation for that  resolution it be say by hale vent that a devise to one for life and after his  decease to his heir have be hold a fee for heir be nomen proceeding by  inference but archer case say he be a devise to a for his life and after to  his heir and to the heir of such heir in which case he say that because the  word of limitation be put to the word heir therefore heir be take to be  demarcation personce and resolve that he shall take by purchase and upon the  same foot be this case of archer treat Ro Abr in Bawsy v Lowdal and Styl I  roll Abr and if a devise to a man and his heir male in the singular number win  have the same effect as a devise to he and his heir male in the plural there  can be no question upon the second point ambler point d whether a devise of a  express estate for life before the limitation to the heir male will prevent  the effect of that limitation for whenever a estate for life be give with a  remainder to the heir or the heir heir of the body of the grantee it will be a  estate of inheritance execute in the ambler er p rantee for when there be a  estate of freehold limit to the ancestor no subsequent imitation to his heir  or to the heir of his body can make they purchaser but the grantee will be  seize in fee or in tail accord to the subsequent limitation though the first  estate limit to he be a estate for life grant by express word and therefore if  heir heir male in the singular number will have the same effect with heir male  in the plural a express estate for life limit to the grantee will be of as  little consequence in one case as the other the case of king v mell vent be  the case in point for in that case there be a express estate for life devise  for the land be devise to Bernard for and during his natural life and after  his death to such issue as he shall have of the body of his second wife point  d the next question will be whether a devise to a man for life and afterward  to his first heir male will be a different estate from a devise to a man for  life and afterward to his heir male without the word first and whether the  insert the word first make any alteration in the case now we be all of opinion  that a devise to a man and his first heir male can have no other effect than a  devise to he and his heir male in the singular number without the word first  for the heir male and the first heir male must necessary be the same person  for the heir male must be the immediate heir male and consequent the first  heir male atk v Lovelace v Lovelace cro Elizabeth on word old a devise to a  man for life and afterward to his first son will have give a remainder which  will have vest in the first son in the lifetime of his father but a devise to  the ambler first heir male can not take effect till after the death of the  father when the heir male and the first heir male must be the same person and  therefore the word first can make no alteration in this case but the same  naked question will still remain whether a devise to a man for life and  afterward to the heir male of his body in the singular number will create a  estate tail and the case of Lovelace v Lovelace cro Elizabeth S c cite ante  which have be cite on the other side of the argument be not to the contrary  for that be a devise to a man and to his old issue male he have no son at that  time and it be adjudge no estate tail but for life only for a man may have  many issue one two three and therefore when there be a devise to he and his  old issue it be a description of the person particular design to take and  shall go no further than to that person only but the case of first or old  issue and the first or old heir be very different for a man can have but one  heir at a time and therefore if the devise be to he and his old heir or first  heir the case will be the same as if the devise have be to he and his heir  heir general cro Elizabeth l V point that but suppose that a devise to a man  for life and after to the heir male of his body will not create a estate tail  yet the subsequent word which be and for want of such heir male to be and  remain with Christopher c will effectual do it for that such heir male must be  the heir male of Thomas as the first devisee for the devise be to Thomas  Trollope and after to the first heir male of his body lawful beget and for  want of such heir male the remainder over so that the case be no more than if  a devise have be make to a man for life and if he die without heir male the  remainder over which will certain make a estate tail for if he die without any  heir male he certain die without a first heir male and if he die without a  first heir male he die without any and the word for want of such issue will  make a estate tail by implication accord to Robinson be case James vent and be  a devise to ambler a for life and if he die without issue the remainder over a  take a estate tail and there be many other case to the same effect see  Pickering v tower ante university of Oxford v Clifton ante Boden v Watson post  and there be a very strong case to this purpose hill and Elizabeth cite by  hale vent by the name of Byflelds case which be a devise to a and if he die  not have a son then to remain to the heir of the testator which be hold to be  a estate tail and burley case Elizabeth cite by hale vent be a case in point  for there be a devise to a for life remainder to the next heir male and for  default of such heir male to remain over adjudge a estate tail for when it be  say that for want of such issue the land shall remain over it be plain mean  that it shall not remain over ambler er p till the issue fail and the issue  must have it so long for nobody else can and so it be a estate tail and  therefore since a devise to a man for life and after to the first heir male of  his body lawful beget and for want of such heir male to another will raise a  estate tail in the devisee judgement must be give for the defendant who claim  as heir male under such a limitation the word heir or heir male of the body  though in the singular number be proper word of limitation and not of purchase  Blackburne v stable v b unless word of limitation be superadd archer case   p  wms or there be something in the context to show that the testator do not mean  to use the word in their technical sense ib see OKeef v Jones Ves swain v  Burton Ves do v lame burr white v Collins Com Rep see Richard v bergavenny  vern S c Cox ms lib n see anon Cox ms lib n page will the word in italic shall  be leave out they seem unlikely to be insert in the but if they be they be not  material to the point in this cause serjeant hill ms reef with the text note  this cause be try at bar and a special verdict be find by a special jury which  verdict be several time afterward solemnly argue at the bar and this term  judgement for the defendant unanimous Lord chief justice eyres Mr justice  Denton Mr justice foster Mr justice reeve this case be affirm in the king  bench unanimous on a writ of error see the argument and judgement in error  serj hill ms vol p