brown case William sparrow and other plaintiff William shaw defendant in error  that April a devise to one with a limitation over to another if the first  devisee die without issue create in construction of law a estate tail in the  first devisee as well as if the devise have be to he and the heir of his body  ground and rudiment of law and equity p can on a trial at the great session  for the county of flint upon the that of April in a ejectment bring for the  land in question on the several demise of ravenscroft Gifford and David Parry  the jury find a special verdict to the follow effect that Thomas ravenscroft  Esq be seize in fee of the premise in question on the d of August by his will  devise the same to his wife for her natural life and for her better support  and credit and for better discharge his debt and in the tenderness of his  affection to her he devise to her the full sum of pound to be raise by her  brown er p her executor administrator or assign by sale of timber or by sale  of any part of the premise or otherwise by dig sink get and sale of coal on  the premise or any part thereof at her her executor administrator or assign  election or choice and if his wife shall die before raise the say pound the  testator give her power by will or deed to appoint any person to raise the say  pound by sale of timber or by sale of coal as aforesaid or by sale of any part  of the premise as aforesaid with a proviso that if either of his sister after  name or such person or person for who his trustee after name shall be trustee  shall pay his say wife her executor administrator or assign the say pound or  accord as she shall by will or deed devise or dispose of the same that then  the say power shall cease and determine after which the will proceed in the  follow word and from and after the decease of my say wife I give bequeathe  devise and dispose of all my say estate before mean name or mention within the  say parish of Hawarden consist in house outhouse land tenement and  hereditament with their and every of their appurtenance unto Francis Branston  sergeant at law and to Charles not of Bybroke in the county of ken gentleman  and to Edward Parry of the six clerk office London gentleman and to the  survivor and survivor of they upon the trust hereafter mention subject  nevertheless to the raise the aforesaid pound that be to say in trust to and  for my love sister Ann Lunsford and Dorothy evatt the wife of major evatt  equal betwixt they during their natural life without commit any manner of  waste from and after the decease of my say wife provide always that what sum  or sum of money in part or in full of the say pound hereby leave my wife shall  be real pay my say wife her executor brown administrator or assign by either  of my say sister in that case my will and meaning be that such money be  likewise raise by get of coal upon the premise only and if either of my say  sister happen to die leave issue or issue of her or their body lawful beget or  to be beget then in trust for such issue or issue of the mother share or else  in trust for the survivor or survivor of they and their respective issue or  issue and if it shall happen that both of my say sister die without issue as  aforesaid and their issue or issue to die without issue or issue lawful to be  beget then the say trustee to stand and be entrust to and for my kinsman Mr  John swift and the heir male of his body lawful to be beget and for want of  such issue then in trust for my godson ravenscroft Gifford and the heir male  of his body lawful to be beget provide the say heir male be Christian Thomas  ravenscroft and for want of such issue then in trust for the heir male of  William ravenscroft of Cornhill London mercer lawful beget or to be beget and  for want of such issue then in trust for my cousin Mr George ravenscroft of  London merchant and his heir for ever lawful beget or to be beget the jury  further find the death of the testator and of his wife to who the premise be  give for life as also the death of Ann Lunsford one of the testator sister  without issue and that Dorothy evatt the other sister enter and be sole seize  of the premise on the saint of October that at the session for flint hold the  that of April the say Dorothy evatt levy a fine and suffer a recovery of the  premise the use whereof be declare to her and her heir that John swift the  first remainder man after the sister and their issue die without issue the  that of February that Dorothy evatt be sister and heir to the testator That  ravenscroft Gifford one of the plaintiff lessors the next remainder man after  John swift go beyond sea in where he continue till that Edward Parry be the  survivor of the three trustee in the will and be dead and that Edward Parry  the other lessor of the plaintiff be his heir That Dorothy evatt the survive  sister die the that of July without issue And that ravenscroft Gifford the  remainder man and David Parry the heir of the survive trustee enter and  several lease to the plaintiff upon who the defendant enter and dispossess he  upon this verdict judgement be give in the grand session of flint on the d of  march for the defendant whereupon a writ of error be bring returnable in the  court of king bench where after several argument it be the unanimous opinion  of all the judge of that court that the judgement give below be erroneous and  in easter term that judgement be reverse accord brown er p brown to reverse  this judgement of reversal a writ of error be bring in parliament and on  behalf of the plaintiff in error it be argue p York t Bootle that by the word  and intention of the will the testator two sister Ann Lunsford and Dorothy  evatt have a estate tail as tenant in common with cross remainder of their  several moieties and as Ann Lunsford die without issue Dorothy evatt become  entitle to the whole estate and have sufficient power to make a good title to  a purchaser for that in construction of law a devise to one with a limitation  over to another if such first person die without issue create a estate tail in  that person as well as if the devise have be to he or her and the heir of his  or her body but as Dorothy evatt under who the plaintiff claim be heir at law  of the testator and as such will have be entitle to the estate in question  have no will be make it be conceive that suppose the word of the will to be  ambiguous yet as they be capable of a construction in favour of the person who  be heir at law of the testator such construction ought to be receive for the  defendant in error it be say t reeve m fazakerley I strange that two question  arise upon this case I whether the devise be to trustee and the survivor of  they without any limitation to their heir there be now in the heir of the  survive trustee a estate sufficient to support the trust in the will two  whether by this will the testator sister Ann Lunsford and Dorothy evatt take a  estate tail in the premise or only a estate for life as to the first question  it be argue that this devise be to the trustee upon the trust after mention  which trust be such as may continue for ever the intent of the testator be  apparent to give they a fee which the law will raise by implication for there  be no difference in law or reason between a devise to a man for ever which  have always be construe a fee and a devise to a man upon trust to continue for  ever and if the will do not pass the feesimple to the trustee it will pass it  to the sister by way of immediate devise as to the second and principal  question it be contend that the two sister take only a estate for life it be a  know rule in the construction of will that the intention of the devisor ought  in all case to be observe if it can be consistent with the rule of law now  this devise be express to the sister during their natural life with the  addition of this restrictive clause without commit any manner of waste which  show the intent of the testator strong that his sister shall only have a  estate for life for if he have intend they a estate tail be can not have  restrain they from commit waste that there be annex as well to the wife estate  for life as to that of the sister a power to raise pound but the wife power be  much ample than the sister for she may raise it by sale of timber or of any  part of the premise or by sale of coal the sister be restrain to raise it by  get of coal only from whence it be plain that the testator intend they only a  estate for life and therefore brown he give they power to raise money by get  of coal which be one kind of waste and a tenant for life stand in need of that  power but if he have intend they a estate tail he will never have give they  such a power because it be a power incident to a estate tail not only to  commit waste in that particular but in all other particular whatsoever beside  this power to the sister intervene between the devise to they for life and the  devise to their issue which show that the testator intent be to complete the  devise to his sister of what estate they be to have before he make any devise  to their issue and it be observable that the power be annex to the estate give  to the wife and sister for life and not to the estate give to the issue of the  sister to who he intend a great estate than for life which can be for no other  reason than because the tenant for life stand in need of such a express power  but there be no occasion to annex it to the estate tail because it be incident  to they that the next devise be to the issue of the sister with the limitation  annex thereto as in the will and it be contend for by the plaintiff in error  that the word issue be a word of limitation and shall raise a estate tail in  the sister but it be hope that issue will here be construe as a word of  purchase and a designation of the person intend to take the estate in which  case it can never extend to enlarge the estate give to the sister for life the  word issue in a conveyance at commonlaw be always a word of purchase in a will  it may sometime be take as a word of limitation to answer the testator  intention where such intention appear manifest from the construction of the  whole will but in the present case it be brown er p plain the testator intend  that the issue of his sister shall take by purchase and therefore he make use  of the word issue as a designation of the person who be to take for he do not  bare give the estate to the issue or issue of his sister but further devise it  to the survivor or survivor of they and their respective issue or issue or  that be to the issue or issue of such issue or issue as his sister shall leave  for the word survivor in the plural number be not applicable to the sister  there be but two of they but must relate to their issue the first limitation  therefore be to the issue of the issue whence the first issue to who estate  the limitation be annex must take by purchase it have be object that the word  issue be nomen proceeding by inference and shall take in all the descendant  and consequent create a estate tail in the sister but the word issue be only  to be understand in this sense when it be a word of limitation for it have  always be take in a different sense when it be a word of purchase it have also  be insist on that a estate tail shall be raise in the sister by implication  from these word if it shall happen that both my say sister die without issue  as aforesaid and their issue or issue to die without issue or issue then the  subsequent remainder be give wherever a estate tail have be raise by  implication it have be to answer the apparent intention of the testator but  brown in the present case the very word from which a estate tail be to be  imply show that the testator take notice that he have before limit the estate  to the issue of the issue beside the word be not general if both my say sister  die without issue but if both my say sister die without issue as aforesaid  which show the testator intention not to enlarge the estate before give to his  sister upon the whole the defendant hope that the judgement of the court of  king bench be well give and that a different determination will be contrary to  the express word and intent of the testator and will be carry this point  further than it ever yet have be carry in order only to enable the sister to  destroy the remainder limit by her brother will against his plain intention  after hear counsel on this writ of error upon the that of April and the judge  attend accord to order and have confer with the Lord chancellor his lordship  acquaint the house that the judge of the king bench be of the same opinion  they be when they give judgement in this case but that there be a difference  of opinion in the judge of the common plea and baron of the exchequer who  desire time to confer in order to be more clear in their opinion whereupon it  be order that the give judgement in this case shall be adjourn till Tuesday  next and that the judge shall then attend in order to deliver their opinion  jour vol p accord on Tuesday the that of April all the judge attend and after  deliver their opinion seriatim in relation to a point of law to they propose  it be order and adjudge that the judgement give in the court of king bench  reverse a judgement give in the court of great session in the county of flint  shall be reverse and that the say judgement of the court of great session  shall be affirm jour vol p