brown case William DARBISON plaintiff John beaumont et ux defendant in error  that may Mews dig xv see winter v perratt Cl f devise of land to the heir male  of my aunt e l lawful beget and for default of such issue to my own right heir  e l be live at the testator death and upon a question between the testator  heir at law and the old son of e l it be adjudge that the old son shall take  wms Eq can ab can viner vol p can Eq can ab can cite in vern fearne contingent  remainder John Speccot be seize in fee of the manor of Penheale and diverse  other manor land tenement and hereditament in the county of Cornwall and Devon  of about pound per and make his will on the that of August and thereby devise  as follow I give devise and bequeathe to my cousin John spark and Jonathan  spark and to the survivor of they all my manor land tenement and hereditament  for the term of twentyone year for the payment of my debt funeral and legacy  with power to lease for life for payment thereof and after payment the term to  cease and after the end or other soon determination of that estate I devise  the say manor and premise to the first son of my body lawful to be beget  either bear in my lifetime or after my decease and to the heir male of the  body of such first son lawful issue and for default of such issue to the heir  of my body lawful to be beget either bear in my lifetime or after my decease  and for default of such issue to John spark for the term of ninetynine year if  he so long happen to live without impeachment of waste remainder to the first  son of John spark lawful to be beget and to the heir male of the body of such  first son and for default of such issue to the second three four and all and  every other son and son of the body of the say John spark lawful to be beget  successive and for default of such issue the remainder of all the say manor to  Jonathan spark for the term of ninetynine year if he so long live and after  his decease to the first son of the body of the say Jonathan spark lawful to  be beget and to the heir male of the body of such first son and for default of  such issue to all and every other son and son of the say Jonathan spark  successive in tail male and for and in default of such issue I give devise and  bequeathe the remainder of all my say estate to the heir male of my aunt mrs  Elizabeth long wife of Richard long clerk lawful beget and for default of such  issue the reversion and remainder of all my say land and estate to be and  remain to my own right heir the testator then give a annuity of pound to the  defendant Dorothy Beaumont his sister for her life and pound apiece to her  child and pound if but one child he also give pound to his aunt Elizabeth long  pound to her child and several other legacy to different person on the that of  August the testator die without issue whereupon John spark and Jonathan spark  enter and be brown possess of the premise by virtue of the devise for  twentyone year but on the that of November and that of December follow they  respective die without issue and upon the death of Jonathan who be the  survivor the defendant enter in Trinity term Thomas long who be the old son of  the testator aunt Elizabeth long exhibit his bill in the court of exchequer  against the defendant for a account of the rend and profit of the estate and  to be let into and quiet in the possession thereof and on hear this cause the  court direct a ejectment to be bring by the plaintiff against the defendant to  try the title at law this ejectment be accord bring be try at Launceston  assize on the that of march before Mr baron Lovel when the jury find a special  verdict state the testator will verbatim that on the that of August he die  seize without issue of his body that John and Jonathan spark enter and be  possess by virtue of the devise to they for twentyone year for payment of debt  funeral legacy and cost that they levy and receive sufficient sum of money to  pay all brown er p the debt legacy and funeral expense of the testator  together with their cost sustain in and about the say trust that the estate  and term of twentyone year be thereby determine that John spark and Jonathan  spark both die without issue that the defendant Dorothy Beaumont be the sister  and next heir at law of the testator that John Beaumont and Dorothy his wife  in right of Dorothy the term of twentyone year be determine enter and be seize  prout law demand that Elizabeth long aunt of the say testator in his will name  at the time of make the say will have three son of her body lawful beget and  no more that Thomas long the lessor of the plaintiff be the old son of the say  Elizabeth long that the say Elizabeth long be still live that after the death  of the testator and the determination of the say term of twentyone year and  the death of John and Jonathan spark and before the time lie in the  declaration the say Thomas long enter and demise to the plaintiff Darbison who  enter and be possess and that the defendant eject he etcetera the general  question upon this verdict be between the defendant Dorothy who claim as heir  of the testator and Thomas long the lessor of the plaintiff who claim under  the will as be the person design therein by the limitation to the heir male of  the body of Elizabeth long antecedent to the limitation to the testator right  heir and after several argument in the court of exchequer all the baron except  Mr baron bury be of opinion that the lessor of the plaintiff have a good title  under the will and give judgement accord but upon further argument on a writ  of error in the exchequer Chamber before the Lord chief justice Parker and the  Lord chief justice Trevor this judgement be reverse brown hereupon the  plaintiff bring his writ of error in parliament and on his behalf it be say p  king I f aland that the single objection take to his title be no one be hres  to live and that mrs long be live there can not in propriety of speech be any  heir male of her body beget to take by this will but to obviate this objection  it be insist that the lessor of the plaintiff be the person design by the  testator to take under the appellation of the heir male of the body of his  aunt Elizabeth long lawful beget and that the intent of the testator by this  devise be to be collect not only from the word of the devise itself but also  from the several other part of the will that the word heir have in law several  signification in the strict sense it signify one who succeed to a dead  ancestor but it also signify in a more general sense a heirapparent which  suppose the ancestor to be live and in this latter sense the word heir be  frequent use in statute law book and record as therefore the law give several  sense to this word it will be hard in the present case to expound it in the  most strict and rigorous sense which will destroy great part of the will when  by law it may have another sense which will support the whole will and the  manifest design of the party that the intent of a testator be the principal  rule for the exposition of a will because he be excuse from use the strict and  proper term and phrase of the law and be at liberty to use such expression as  he please for if they be such as sufficient declare his intent it be enough  and that intent so express shall take place if by any possibility it can be  make consistent with the rule of law now here the testator take notice that  the son of his aunt Elizabeth long be live by give they legacy and thereby he  exclude all future heir he also take notice that Elizabeth long the ancestor  be likewise live by give her a legacy and therefore he can not intend that the  first son shall take as heir strict that be impossible in the lifetime of the  ancestor but as heirapparent he may and be clear intend to take he give his  heir the defendant Dorothy a annuity and do not intend she shall have the  whole estate until failure of issue male of his aunt long and therefore he  express devise the land to his own right heir in default only of the heir male  of the body of his aunt long so that the intent be manifest that the apparent  heir male of her body who be the lessor of the plaintiff shall take before his  heir general who be the defendant Dorothy and that she shall take no more than  the annuity so long as there shall be issue male of his say aunt that by this  construction every part of the will stand and be consistent no rule of law be  break and the word heir be take in a sense which the law allow but if a  different construction shall take place several part and some whole line  together of a very brown er p sensible will must be expunge and the heir at  law must take against the express meaning of the testator that this case seem  to be the very same as the case of Burchett and Durdant Ventris which have  former be dispute under brown the name of James and Richardson Ventris lev  raym Jones pollex where a devise to the heir male of the body of Robert  Durdant then live be adjudge in westminsterhall and twice affirm in parliament  I July jour vol p Nov ib p to be a good limitation to George the old son of  Robert Durdant though Robert Durdant be live for there can be no great  difference between the heir male of the body of Robert Durdant then live and  the heir male of the body of Elizabeth long lawful beget the word then beget  be tantamount to the word then live for these reason it be conceive that the  first judgement be right give and that therefore the judgement of reversal  ought to be reverse on the other side it be argue I Jekyll I Pratt that the  right of the defendant Dorothy who be the testator heir at law be in its  nature favourable and constant support by the commonlaw of England and that  all devise which disinherit a heir at law ought to receive a strict  construction that in order to make the devise in question good to the lessor  of the plaintiff it must either be construe a contingent remainder or the word  heir male must be take as a description story person so as to vest the  remainder in he now it can not be good as a contingent remainder because there  be no freehold to support it all the precedent estate be for year and even if  it be good as a contingent remainder in its original creation yet Elizabeth  long be live at the testator death the lessor of the plaintiff can not take  for it be a stand rule in law that all contingent remainder must vest either  during the particular estate or at the instant when the particular estate  determine otherwise they be void and as Elizabeth long be live when the  particular estate determine Thomas her son can not take as heir for no one be  hres to live neither can this devise to be good as a demarcation or  description story person for that be such a description as be vice a means of  knowing the word heir do not agree with the person pretend to be describe he  be not heir of Elizabeth long nor can be while she be live that heir be a  legal term can be understand only in a legal sense unless some other word or  word accompany it determine the sense otherwise as heirapparent or heir now  live but the word beget do not determine the sense otherwise because heir  beget and to be beget have the same legal construction and there do not appear  any intention in the testator to confine this devise to the issue male of  Elizabeth long then live much less to Thomas long only who will take as the  person here describe for these and several other weighty reason and authority  in law the devise under which Thomas long claim be adjudge to be a void devise  and that the land descend to the defendant Dorothy as the heir at law of the  testator and therefore it be hope that this judgement will be affirm but after  hear counsel on this writ of error it be order and adjudge that the judgement  of reversal give in the exchequer Chamber shall be reverse jour vol p