case preston against funnel a devise to a for life with remainder to the near  relation videlicet to b my brother son and his heir remainder to my near of  kin first male then female direct modern er p that the estate shall never be  sell but keep in repair and descend to the family convey a estate in fee to b  at a trial of nisi prius the follow case be make for the opinion of the court  t eagle seize in fee of copyhold land surrender they to the use of his will  and die he devise they by his will in the follow manner I give to my brother t  eagle all my good chattel c house land and tenement and whatever else I have  in the world for and during his natural life my debt and legacy be first pay  and then the house and land to the near of my relation that be to say to  Thomas eagle my brother son to he and his heir and after their decease to the  near of kindred to I first male and then female which say land and house be  never to be sell but to be keep in repair and that this house which I now live  in be to descend to the name of the eagle and to be keep up as long as the  world endure and never to be sell that the testator die seize after who death  Thomas eagle the brother enter and die and after at a court of the manor  Thomas eagle the nephew be admit and surrender the premise for a valuable  consideration to one I Charles and his heir who demise they to modern the  defendant the case further state that there be a custom in the manor for the  tenant to suffer a recovery of those land of which a recovery ought by law to  be suffer and that t eagle the nephew before his death never suffer alley  recovery of these premise in the manor court the lessor of the plaintiff be  the near of kin to the testator and heir at law to he the question therefore  upon this case be whether t eagle the nephew take a estate in fee or in tail  by this devise if he take a estate in fee then there be no need for a recovery  and consequent the verdict will be for the defendant if he take only a estate  in tail then he can not dispose of it without a recovery and have never suffer  any it will be for the plaintiff as heir at law to the testator the court be  all of opinion that t eagle the nephew take a estate in fee for it be plain  that the testator mean and intend by the word of his devise to create a  perpetuity which the law abhor and ought to be avoid and we must construe the  word heir to mean heir general of the nephew and not heir of his body the rule  of law upon construction of this word heir when there have be a limitation  over be that where the first devisee can want heir as long as any of those be  in be to who the estate be devise over there the first devisee shall only take  a estatetail though the devise be to he and his heir for heir shall be  construe only to mean heir of his body but if the estate be limit over to a  stranger or to one or more who may not be heir to the devisee there the word  heir though there be a devise over shall pass a fee to the first devisee and  the devise over be void now here the near of kin to the testator may be of the  halfblood to Thomas the nephew who be the first devisee and consequent not  capable of inherit to he and the contrary do not appear upon the case if we be  to put any other construction upon it we must also construe it heir male c for  it be plain the intention of the testator that it shall always continue in the  name and family of the eagle and if it be to be limit to daughter that will  defeat the testator intention the testator likewise may want heir for as it be  limit to the near of kin that near of kin may be of the half blood which can  not be inheritable to the testator therefore we be of opinion for the  defendant that t eagle have a estate in fee in he and consequent can dispose  of it without suffer any recovery