case full against full Hilary term Elizabeth roll if a devise he make of land  in tail with diverse remainder over and the devisee die leave issue in the  lifetime of the devisor the next in the remainder shall have the land although  the devisor have declare v jud voice that the issue of the devisee shall have  it ante dyer in notorious facts I lev vent Jones ray pale yellow on Dev SC  more Carth Peer will strange Mod salk ld ray ba ab Mod Rep pow on Dev ba ab  dougl in notorious facts burr t Rep trespass foe land in chi well in the  county of Essex upon not guilty plead a special verdict be find that one Henry  full be seize of this land in fee hold in socage and have issue four son  videlicet John Richard Edward and Henry and croak Elizabeth devise the land to  Richard the second son and his heir of his body and after his death without  issue then to Edward the three son in tail and then to John the old son in  tail remainder to the right heir of the devisor Richard of es have issue two  son videlicet Thomas and William afterward Henry ry the devisor say my will be  that the son of Richard my son decease shall have the land devise to their  father as they shall have have if their father have live and have die after  me  Henry the devisor diel Thomas the son of Richard enter upon who John the  old son of Henry enter Thomas reenter John bring trespass et si c this case be  argue by touse for the plaintiff and by foster for the defendant and two point  therein move Fiist whether by reason of this new speech and declaration after  the death of Richard Thomas his son shall take as a devisee?Secondly admit it  he not a good devise to Thomas whether John the old son shall have it during  the time that any issue of the body of Richard he alive or whether Edward in  remainder shall enter present because it be not limit unto he until the death  of Richard without issue so as in the mean time the heir of the devisor may  retain it for if he in remainder ought to have it then the defendant have  primer possession and so the plaintiff have not any cause of action gawdy hold  that Thomas shall not take it and that there be not any difference betwixt  this and brett case there the devise be in fee here it be in tail which be all  one and this speech of the devisor be not of any effect for there be such a  speech in brett case but the devise of the manor of d which he have not be  good with a new publication after he have purchase it so of a devise to a  infant in ventre sa mere with a new publication after its birth a for there be  his will write that he shall have it and it be express by his word afterward  but here there be not any write will that the son of Richard shall have it and  he can have it as his heir wherefore c to the second point there be no doubt  but that he in remainder shall have it present for the devise be void to the  first it be as if it never have be make so it be if the first devisee refuse  he in the remainder shall have it present as Henry blow good luck mark dyer  jasper warren case wherefore the plaintiff have not any cause of action c and  in this point all the other justice agree with he and as to the first point b  Clench agree also but Fenner and Popham contra Fenner hold that Thomas shall  take it by this devise for this differ from brett case in the manner of the  new publication and as a devise to one who be not in be with a publication  afterward when he come in be be good so it be here for it appear as it be find  that the devisor know well that the heir of the body of Richard shall not take  by descent their father be Plowd a see pound will c b post vern Plowd Mod Com  dig croak Elizabeth er p dead and therefore he will have they to take as they  may videlicet as purchaser by the name of heir of the body of Richard although  Richard be dead at the time of the devisor death and to do that he make this  new declaration of his will Popham accord that Thomas the heir of Richard  shall have it as devisee by this new publication for none will deny that if  the devise have be to Richard and the heir of his body and Richard have be  dead at the time of the devise croak Elizabeth but that the heir shall take it  as a purchaser and true there be not any difference for this new publication  be quasi a ne r will as it be in Trevilians case dyer and I hold clear if a  man have issue three son and devise his land to the old in tail remainder to  the second in tail remainder to the three in fee and the old die have issue in  his father lifetime that his issue shall have it without a new publication  because the intent of the devisor be not to disinherit any of his son and it  may be he do not know of the death of his old son who be peradventure heyond  sea or elsewhere absent and there be not any reason to make such a  construction as to disinherit his issue for by such mean many may he  disinherit and the will expound against the intent of the devisor but of such  a devise to a stranger it may peradventure he otherwise for the devisee be  dead the intent of the devisor do not appear to carry it from his own heir to  the heir of a stranger but for the second point in regard they all agree  against the plaintiff it be adjudge present for the defendant