case MAKEPIECE vers John leech fletcher and other when the right of entry  shall be toll by descent and nonclaim this be a action of ejectment on the  demise of John lees and George tide on the saint of July Geo and upon another  demise of Thomas Illingworth upon not guilty a special verdict be find to the  follow effect Robert wield be seize in fee of the land in question by  indenture date the saint of November car in consideration of his affection to  his two daughter whether and mary and to the intent that his tenement shall  descend to they and continue in his blood and progeny covenant to stand seize  to the use of himself for life and after his decease to the use of the heir  male of his body and in default of such issue to the use of mary his young  daughter and the issue of her body for the term of ninety nine year from the  time of the death of the say Robert wield and in default of such issue and at  the end of such term to the use of whether his old daughter and the issue of  her body and in default of such issue to the use of Helen his other daughter  and the issue of her body and in default c to the use of the heir male of John  wield his brother and in default c to the use of his sister Elizabeth hall and  mary woolmer and the issue of their body and in default c to the use of his  right heir comens afterward Robert wield by his will date the that of November  devise thathis say tenement shall be leave and dispose to such use intent and  purpose as he have limit by the say indenture of the saint of November and die  on the that of April without issue male but leave his say three daughter  whether mary and Helen on the saint of September whether the old daughter  marry Thomas Illingworth who at their death leave Robert Illingworth their old  son and heir who have Thomas Illingworth his son and heir who be one of the  lessors and die on the that of October on the that of April after the death of  the testator mary his young daughter enter and marry John Sandford on the that  of February and die on the that of November leave John Sandford her son and  heir who afterward enter and be seize and during his seize Robert Illingworth  father of Thomas Illingworth the lessor after the death of whether and her  husband by his deed of the that of October release all his right and estate in  the premise to the say John Sandford and his heir on the that of may John  Sandford the son die have issue John and other issue and John his son and heir  enter and be seize and by indenture date the that and that of September lease  and release to John lees the defendant and his heir upon which Thomas  Illingworth the lessor on the that of April enter and demise to the plaintiff  whereupon John lees and the other defendant by his direction enter and oust he  but whether they be guilty or not be submit to the court and it be insist that  by the indenture of the saint of November car whether the old daughter be  tenant in tail after the term of ninetynine year give to mary be expire which  expire on the that of April and therefore upon the that of April Thomas  Illingworth the lessor may well enter as issue of the body of the say whether  and make the lease to the plaintiff comens it be admit that by conveyance at  commonlaw a limitation to a and the issue of his body do not make a a tenant  in tail and the word heir be necessary to make a estate of inheritance  otherwise where a limitation be by way of a use and therefore it be say I   b  that if a man have by bargain and sale convey his land for money pay to  another before the statute h the bargainee shall have a feesimple without  those word his heir which be warrant by the case there cite and in the case of  lee v brace ld raym salk holt say Mod SC a Carth Mod it be resolve that a  conveyance by way of use shall be always construe as a will accord to the  intention of the party and shall not be confine to the strict rule comens er p  of conveyance at commonlaw and therefore where Walter brace make feoff to the  use of himself for life and afterward to the use of Thomas brace and his heir  for ever and if Thomas die without issue of his body to the use of his right  heir it be resolve as before it be in the court of common plea W m in a case  upon a action of ejectment there that Thomas have only a estatetail it be  insist that if whether have not a estatetail by the deed she will have it by  the will of Robert wield who devise that his land and tenement shall be  dispose of to such use as he have limit and appoint by the say deed indent  date the that of November and this amount to a disposition of the land to the  use in the deed which be as much as if the use be mention in his will and if  the devise be to whether and the issue of her body without doubt it will be a  estatetail in whether as where a man devise I will my young child not marry  shall have such several annuity as be express in several write sign and seal  by I accord to the true meaning of the say write it be resolve that the will  devise such rend as be mention in such write be a good devise of the rend so  salk show Mod comb SC a where a man have by deed agree to levy a fine to such  use and afterward by his will before a fine levy devise all his land grant by  his settlement and all estate comens to his son accord to the deed it be agree  that the land pass to the son to the use in the deed but it be argue e contra  that no estatetail be give to whether by the deed but only for life for the  word heir be necessary to make a estate of inheritance in gift in tail as well  as in feoff and grant   light a Inst roll and the case cite do not contradict  it for the case cite   b be before the statute h and the case of lee and brace  make the same construction of the word heir in the charter of feoff as will be  make in a will where the word heir be explain by the subsequent word for  default of issue of his body to be understand of the heir of his body and not  of his heir general and if by the deed whether do not take a estatetail she  can not take it by the will for the testator devise nothing that be not grant  by the deed nor limit no new use or estate only that which be limit by the  deed and therefore if whether by the deed take only a estate for life she  shall not take a great estate by the devise it be true where a deed be not  effectual and afterward the testator by his will devise to the use of the deed  the estate may pass by the will though it shall not pass b that the deed as if  the will devise with reference to a feoff where no livery be or to a bargain  and sale where no enrolment be or to a deed by which a fine be agree to be  levy to such use and no fine be levy there the estate passes by the will which  have reference to the deed as the case be salk although it can not otherwise  pass but no other estate shall pass only such as will pass if livery or  enrolment have be make or a fine levy but if whether be tenant in tail Thomas  Illingworth the lessor have no title of entry for it be find by the verdict  that John Sandford after the death of his father and mother enter and be seize  of the tenement and it be not find that he be executor therefore it shall be  intend comens that he be not and his mother mary have only a term of  ninetynine year his entry not be as executor or administrator be a seize and  when be afterward videlicet on the that of may die seize and a descent be cast  upon his son and heir who continue five year in possession without entry or  claim by Robert Illingworth or Thomas Illingworth the lessor the entry of the  lessor be toll by the StatuteSt Henry c   light a Bl Com a h and by  consequence before a recovery by a formedon he can not make a demise upon  which a ejectment may be maintain Gilbert in his law of tenor relative to the  present point say when any man be seize the seize have only the naked  possession because the disseizee may enter and evict he but against all other  person the seize have a right and in this respect only can be say to have the  right of possession for in respect to the disseizee he have no right at all  but when a descent be cast the heir of the seize have law possession because  the disseizee can enter upon his possession and evict he but be put to his  real action because the freehold be cast upon the heir p and in Hilary term  follow it be argue by sergeant chapel that the estate limit to Helen by  indenture date the that of November car not be to commence till the death of  whether without issue the estate be in the interim in the testator and he by  his will can make to whether a estatetail although by the deed she have only a  estate for life but it be answer that the will do not give any other estate or  limit other use only that which be limit by the deed and if Robert wield have  the estate in the interim be have it only as a use and not to dispose of which  descend to his heir and the three daughter be his heir the part of whether  pass by the lease and release make by Robert Illingworth the father to the  lessor comens er p and all the court agree that whether have not a estatetail  but for life only and that if she have the entry of Thomas Illingworth be bar  by descent and nonclaim comens de boundary pasch geo two in scacc